FR Doc 06-6656
[Federal Register: August 14, 2006 (Volume 71, Number 156)]
[Rules and Regulations]
[Page 46539-46845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au06-14]
[[Page 46539]]
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Part II
Department of Education
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34 CFR Parts 300 and 301
Assistance to States for the Education of Children With Disabilities
and Preschool Grants for Children With Disabilities; Final Rule
[[Page 46540]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
RIN 1820-AB57
Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary issues final regulations governing the
Assistance to States for Education of Children with Disabilities
Program and the Preschool Grants for Children with Disabilities
Program. These regulations are needed to implement changes made to the
Individuals with Disabilities Education Act, as amended by the
Individuals with Disabilities Education Improvement Act of 2004 (Act or
IDEA).
DATES: These regulations take effect on October 13, 2006.
FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC
20202-2641. Telephone: (202) 245-7459, ext. 3.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay System (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement changes in the
regulations governing the Assistance to States for Education of
Children with Disabilities Program and the Preschool Grants for
Children with Disabilities Program necessitated by the reauthorization
of the IDEA. With the issuance of these final regulations, part 301 has
been removed and the regulations implementing the Preschool Grants for
Children with Disabilities Program are included under subpart H of
these final regulations.
On June 21, 2005, the Secretary published a notice of proposed
rulemaking in the Federal Register (70 FR 35782) (NPRM) to amend the
regulations governing the Assistance to States for Education of
Children with Disabilities Program, the Preschool Grants for Children
with Disabilities Program, and Service Obligations under Special
Education Personnel Development to Improve Services and Results for
Children with Disabilities. In the preamble to the NPRM, the Secretary
discussed, on pages 35783 through 35819, the changes proposed to the
regulations for these programs; specifically, the amendments to 34 CFR
part 300, the removal of 34 CFR part 301 and relocation of those
provisions to subpart H of 34 CFR part 300, and the amendments to 34
CFR part 304.
Final regulations for 34 CFR Part 304--Special Education-Personnel
Development to Improve Services and Results for Children with
Disabilities were published in the Federal Register (71 FR 32396) on
June 5, 2006, and became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the major substantive changes in
these final regulations from the regulations proposed in the NPRM (the
rationale for each of these changes is discussed in the Analysis of
Comments and Changes section of this preamble):
Subpart A--General
Definitions
• The definition of child with a disability in Sec. 300.8
has been revised as follows:
(1) Section 300.8(b) (Children aged three through nine experiencing
developmental delays) has been changed to clarify that the use of the
term ``developmental delay'' is subject to the conditions described in
Sec. 300.111(b).
(2) The definition of other health impairment in Sec.
300.8(c)(9)(i) has been changed to add ``Tourette Syndrome'' to the
list of chronic or acute health problems.
• The definition of excess costs in Sec. 300.16 has been
revised to clarify that the computation of excess costs may not include
capital outlay and debt service. In addition, a new ``Appendix A to
Part 300--Excess Cost Calculation'' has been added to provide a
description (and an example) of how to calculate excess costs under the
Act and these regulations.
• The definition of highly qualified special education
teacher in Sec. 300.18 has been revised, as follows:
(1) Section 300.18(b), regarding requirements for highly qualified
special education teachers in general, has been modified to clarify
that, when used with respect to any special education teacher teaching
in a charter school, highly qualified means that the teacher meets the
certification or licensing requirements, if any, set forth in the
State's public charter school law.
(2) A new Sec. 300.18(e), regarding separate ``high objective
uniform State standards of evaluation'' (HOUSSE), has been added to
provide that a State may develop a separate HOUSSE for special
education teachers, provided that any adaptations of the State's HOUSSE
would not establish a lower standard for the content knowledge
requirements for special education teachers and meets all the
requirements for a HOUSSE for regular education teachers. This
provision also clarifies that a State may develop a separate HOUSSE for
special education teachers, which may include single HOUSSE evaluations
that cover multiple subjects.
(3) Section 300.18(g) (proposed Sec. 300.18(f)) (``Applicability
of definition to ESEA requirements; and clarification of new special
education teacher'') has been revised as follows: (1) The heading has
been revised, and (2) the language changed to clarify when a special
education teacher is considered ``new'' for some purposes.
(4) Section 300.18(h) (proposed Sec. 300.18(g)) has been modified
to clarify that the highly qualified special education teacher
requirements also do not apply to private school teachers hired or
contracted by LEAs to provide equitable services to parentally-placed
private school children with disabilities under Sec. 300.138.
• The definition of Indian and Indian tribe in Sec. 300.21
has been changed to clarify that nothing in the definition is intended
to indicate that the Secretary of the Interior is required to provide
services or funding to a State Indian tribe that is not listed in the
Federal Register list of Indian entities recognized as eligible to
receive services from the United States, published pursuant to Section
104 of the Federally Recognized Indian Tribe List Act of 1994, 25
U.S.C. 479a-1.
• The definition of parent in Sec. 300.30 has been revised
to substitute ``biological'' for ``natural'' each time it appears in
the definition, and to add language clarifying that to be considered a
parent under this definition a ``guardian'' must be a person generally
authorized to act as the child's parent, or authorized to make
educational decisions for the child.
• The definition of related services in Sec. 300.34 has
been revised as follows:
(1) Section 300.34(a) (General) has been modified to (A) add the
statutory term ``early identification and assessment of disabilities in
children,'' which was inadvertently omitted from the NPRM, (B) combine
``school health services'' and ``school nurse services,'' and (C)
remove the clause relating to a free appropriate public education under
[[Page 46541]]
``school nurse services'' because it duplicates the clause in Sec.
300.34(c)(13).
(2) Section 300.34(b) has been changed to (A) expand the title to
read ``Exception; services that apply to children with surgically
implanted devices, including cochlear implants,'' and (B) clarify, in
new paragraph (b)(1), that related services do not include a medical
device that is surgically implanted, the optimization of that device's
functioning (e.g., mapping), maintenance of that device, or the
replacement of that device.
(3) A new Sec. 300.34(b)(2) has been added to make clear that
nothing in paragraph (b)(1) of Sec. 300.34 (A) limits the right of a
child with a surgically implanted device (e.g., a cochlear implant) to
receive related services, as listed in Sec. 300.34(a), that are
determined by the IEP Team to be necessary for the child to receive
FAPE; (B) limits the responsibility of a public agency to appropriately
monitor and maintain medical devices that are needed to maintain the
health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported to
and from school or is at school; or (C) prevents the routine checking
of an external component of a surgically-implanted device to make sure
it is functioning properly, as required in Sec. 300.113(b).
(4) The definition of interpreting services in Sec. 300.34(c)(4)
has been changed to clarify that the term includes (A) transcription
services, such as communication access real-time translation (CART), C-
Print, and TypeWell for children who are deaf or hard of hearing, and
(B) special interpreting services for children who are deaf-blind.
(5) The definition of orientation and mobility services in Sec.
300.34(c)(7) has been changed to remove the term ``travel training
instruction.'' The term is under the definition of special education,
and is defined in Sec. 300.39(b)(4).
(6) The definition of school nurse services in 300.34(c)(13) has
been expanded and re-named school health services and school nurse
services. The expanded definition clarifies that ``school nurse
services'' are provided by a qualified school nurse, and ``school
health services'' may be provided by a qualified school nurse or other
qualified person.
• A definition of scientifically based research has been
added in new Sec. 300.35 that incorporates by reference the definition
of that term from the Elementary and Secondary Education Act of 1965,
as amended, 20 U.S.C. 6301 et seq. (ESEA).
With the addition of the new definition in Sec. 300.35, the
definitions in subpart A, beginning with the definition of secondary
school, have been renumbered.
• The definition of special education in Sec. 300.39
(proposed Sec. 300.38) has been revised to remove the definition of
vocational and technical education that was included in proposed Sec.
300.38(b)(6).
• The definition of supplementary aids and services in Sec.
300.42 (proposed Sec. 300.41) has been modified to specify that aids,
services, and other supports are also provided to enable children with
disabilities to participate in extracurricular and nonacademic
settings.
Subpart B--State Eligibility
FAPE Requirements
• Section 300.101(c) has been revised to clarify that a free
appropriate public education (FAPE) must be available to any individual
child with a disability who needs special education and related
services, even though the child has not failed or been retained in a
course, and is advancing from grade to grade.
• Section 300.102(a)(3), regarding exceptions to FAPE, has
been changed to clarify that a regular high school diploma does not
include an alternative degree that is not fully aligned with the
State's academic standards, such as a certificate or a general
educational development credential (GED).
• Section 300.105, regarding assistive technology and proper
functioning of hearing aids, has been re-titled ``Assistive
technology,'' and proposed paragraph (b), regarding the proper
functioning of hearing aids, has been moved to new Sec. 300.113(a).
• Section 300.107(a), regarding nonacademic services, has
been revised to specify the steps each public agency must take,
including the provision of supplementary aids and services determined
appropriate and necessary by the child's IEP Team, to provide
nonacademic and extracurricular services and activities in the manner
necessary to afford children with disabilities an equal opportunity for
participation in those services and activities.
• Proposed Sec. 300.108(a), regarding physical education
services, has been revised to specify that physical education must be
made available to all children with disabilities receiving FAPE, unless
the public agency enrolls children without disabilities and does not
provide physical education to children without disabilities in the same
grades.
• A new Sec. 300.113, regarding routine checking of hearing
aids and external components of surgically implanted medical devices,
has been added, as follows:
(1) Paragraph (a) of Sec. 300.113 requires each public agency to
ensure that hearing aids worn in school by children with hearing
impairments, including deafness, are functioning properly.
(2) A new Sec. 300.113(b)(1) requires each public agency to ensure
that the external components of surgically implanted medical devices
are functioning properly. However, new Sec. 300.113(b)(2) has been
added to make it clear that, for a child with a surgically implanted
medical device who is receiving special education and related services,
a public agency is not responsible for the post-surgical maintenance,
programming, or replacement of the medical device that has been
surgically implanted (or of an external component of the surgically
implanted medical device).
Least Restrictive Environment
• Section 300.116(b)(3) and (c) regarding placements, has
been revised to remove the qualification ``unless the parent agrees
otherwise'' from the requirements that (1) the child's placement be as
close as possible to the child's home, and (2) the child is educated in
the school he or she would attend if not disabled.
• Section 300.117 (Nonacademic settings) has been changed to
clarify that each public agency must ensure that each child with a
disability has the supplementary aids and services determined by the
child's individualized education program (IEP) Team to be appropriate
and necessary for the child to participate with nondisabled children in
the extracurricular services and activities to the maximum extent
appropriate to the needs of that child.
Children With Disabilities Enrolled by Their Parents in Private Schools
• Section 300.130 (definition of parentally-placed private
school children with disabilities) has been revised to clarify that the
term means children with disabilities enrolled by their parents in
private, including religious, schools or facilities, that meet the
definition of elementary school in Sec. 300.13 or secondary school in
Sec. 300.36.
• A new Sec. 300.131(f), regarding child find for out-of-
State parentally-placed private school children with disabilities, has
been added to clarify that each LEA
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in which private (including religious) elementary schools and secondary
schools are located must include parentally-placed private school
children who reside in a State other than the State in which the
private schools that they attend are located.
• Section 300.133, regarding expenditures for parentally-
placed private school children with disabilities, has been revised, as
follows:
(1) A new Sec. 300.133(a)(2)(ii), has been added to clarify that
children aged three through five are considered to be parentally-placed
private school children with disabilities enrolled by their parents in
private, including religious, elementary schools, if they are enrolled
in a private school that meets the definition of elementary school in
Sec. 300.13.
(2) A new Sec. 300.133(a)(3) has been added to specify that, if an
LEA has not expended for equitable services for parentally-placed
private school children with disabilities all of the applicable funds
described in Sec. 300.133(a)(1) and (a)(2) by the end of the fiscal
year for which Congress appropriated the funds, the LEA must obligate
the remaining funds for special education and related services
(including direct services) to parentally-placed private school
children with disabilities during a carry-over period of one additional
year.
• Section 300.136, regarding compliance related to
parentally-placed private school children with disabilities, has been
revised to remove the requirement that private school officials must
submit complaints to the SEA using the procedures in Sec. Sec. 300.151
through 300.153.
• Section 300.138(a), regarding the requirement that
services to parentally-placed private school children with disabilities
must be provided by personnel meeting the same standards as personnel
providing services in the public schools, has been modified to clarify
that private elementary school and secondary school teachers who are
providing equitable services to parentally-placed private school
children with disabilities do not have to meet the highly qualified
special education teacher requirements in Sec. 300.18.
• Section 300.140, regarding due process complaints and
State complaints, has been revised to make the following changes:
(1) Section 300.140(b)(1) (proposed Sec. 300.140(a)(2)), regarding
child find complaints, has been changed to clarify that the procedures
in Sec. Sec. 300.504 through 300.519 apply to complaints that an LEA
has failed to meet the child find requirements in Sec. 300.131,
including the requirements in Sec. Sec. 300.301 through 300.311.
(2) A new paragraph (b)(2) has been added to provide that any due
process complaint regarding the child find requirements (as described
in Sec. 300.140(b)(1)) must be filed with the LEA in which the private
school is located and a copy of the complaint must be forwarded to the
SEA.
(3) A new Sec. 300.140(c), regarding State complaints by private
school officials, has been added to clarify that (A) any complaint that
an SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132
through 300.135 and 300.137 through 300.144 must be filed in accordance
with the procedures described in Sec. Sec. 300.151 through 300.153,
and (B) a complaint filed by a private school official under Sec.
300.136(a) must be filed with the SEA in accordance with the procedures
in Sec. 300.136(b).
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Section 300.148 Placement of Children by Parents if FAPE Is at Issue
• A new Sec. 300.148(b), regarding disagreements about
FAPE, has been added (from current Sec. 300.403(b)) to clarify that
disagreements between a parent and a public agency regarding the
availability of a program appropriate for a child with a disability,
and the question of financial reimbursement, are subject to the due
process procedures in Sec. Sec. 300.504 through 300.520.
State Complaint Procedures
• Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B))
has been revised to clarify that each SEA's complaint procedures must
provide the public agency with an opportunity to respond to a complaint
filed under Sec. 300.153, including, at a minimum, an opportunity for
a parent who has filed a complaint and the public agency to voluntarily
engage in mediation consistent with Sec. 300.506.
• Section 300.152(b)(1)(ii), regarding time extensions for
filing a State complaint, has been revised to clarify that it would be
permissible to extend the 60-day timeline if the parent (or individual
or organization if mediation or other alternative means of dispute
resolution is available to the individual or organization under State
procedures) and the public agency agree to engage in mediation or to
engage in other alternative means of dispute resolution, if available
in the State.
• Section 300.152(c), regarding complaints filed under Sec.
300.152 and due process hearings under Sec. 300.507 and Sec. Sec.
300.530 through 300.532, has been revised to clarify that if a written
complaint is received that is also the subject of a due process hearing
under Sec. Sec. 300.507 or 300.530 through 300.532, or contains
multiple issues of which one or more are part of a due process hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not part of the
due process hearing must be resolved using the time limit and
procedures described elsewhere in the State complaint procedures. A new
paragraph (c)(3) also has been added to require SEAs to resolve
complaints alleging a public agency's failure to implement a due
process hearing. This is the same requirement in current Sec.
300.661(c)(3).
• Section 300.153(c), regarding the one year time limit from
the date the alleged violation occurred and the date the complaint is
received in accordance with Sec. 300.151, has been revised by removing
the exception clause related to complaints covered under Sec.
300.507(a)(2).
Methods of Ensuring Services
• Section 300.154(d), regarding children with disabilities
who are covered by public benefits or insurance, has been revised to
clarify that the public agency must (1) obtain parental consent each
time that access to the parent's public benefits or insurance is
sought, and (2) notify parents that refusal to allow access to their
public benefits or insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no
cost to the parents.
Additional Eligibility Requirements
• Section 300.156(e), regarding personnel qualifications,
has been revised (1) to add ``or a class of students,'' to clarify that
a judicial action on behalf of a class of students may not be filed for
failure of a particular SEA or LEA employee to be highly qualified, and
(2) to substitute the word ``employee'' for ``staff person,'' to be
more precise in the rule of construction in new Sec. 300.18(f)
(proposed Sec. 300.18(e)).
• Section 300.160 (participation in assessments) has been
removed, and the section has been designated as ``Reserved.''
Participation in assessments is the subject of a new notice of proposed
rulemaking issued on December 15, 2005 (70 FR 74624) to amend the
regulations governing programs under Title I of the ESEA and
[[Page 46543]]
Part B of the IDEA regarding additional flexibility for States to
measure the achievement of children with disabilities based on modified
achievement standards.
Other Provisions Required for State Eligibility
• Section 300.172, regarding access to instructional
materials, has been revised: (1) To make clear that States must adopt
the National Instructional Materials Accessibility Standard (NIMAS),
published as Appendix C to these final regulations; (2) to establish a
definition of ``timely manner,'' for purposes of Sec. 300.172(b)(2)
and (b)(3) if the State is not coordinating with the National
Instructional Materials Access Center (NIMAC), or Sec. 300.172(b)(3)
and (c)(2) if the State is coordinating with the NIMAC; (3) to add a
new Sec. 300.172(b)(4) to require SEAs to ensure that all public
agencies take all reasonable steps to provide instructional materials
in accessible formats to children with disabilities who need those
instructional materials at the same time as other children receive
instructional materials; and (4) to add a new Sec. 300.172(e)(2) to
clarify, that all definitions in Sec. 300.172(e)(1) apply to each
State and LEA, whether or not the State or LEA chooses to coordinate
with the NIMAC.
• A new Sec. 300.177 has been added to include a provision
regarding ``States' sovereign immunity.'' That provision, which has
been added to incorporate the language in section 604 of the Act, makes
clear that a State that accepts funds under Part B of the Act waives
its immunity under the 11th amendment of the Constitution of the United
States from suit in Federal court for a violation of Part B of the Act.
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
• Section 300.300, regarding parental consent, has been
revised, as follows:
(1) Paragraph (a) of Sec. 300.300, regarding consent for initial
evaluation, has been changed to provide that the public agency
proposing to conduct an initial evaluation to determine if a child
qualifies as a child with a disability must, after providing notice
consistent with Sec. Sec. 300.503 and 300.504, obtain informed
consent, consistent with Sec. 300.9, from the parent of the child
before conducting the evaluation. A new paragraph (a)(1)(iii) has been
added to require a public agency to make reasonable efforts to obtain
the informed consent from the parent for an initial evaluation.
(2) Section 300.300(a)(3), regarding a parent's failure to provide
consent for initial evaluation, has been changed to clarify, in a new
paragraph (a)(3)(ii), that the public agency does not violate its
obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311
if it declines to pursue the evaluation.
(3) Section 300.300(b), regarding parental consent for services,
has been modified by a new paragraph (b)(2) that requires a public
agency to make reasonable efforts to obtain informed consent from the
parent for the initial provision of special education and related
services.
(4) Section 300.300(c)(1), regarding parental consent for
reevaluations, has been modified to clarify that if a parent refuses to
consent to a reevaluation, the public agency may, but is not required
to, pursue the reevaluation by using the consent override procedures in
Sec. 300.300(a)(3), and the public agency does not violate its
obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311
if it declines to pursue the evaluation or reevaluation.
(5) A new Sec. 300.300(d)(4) has been added to provide that if a
parent of a child who is home schooled or placed in a private school by
the parent at the parent's expense, does not provide consent for an
initial evaluation or a reevaluation, or the parent fails to respond to
a request to provide consent, the public agency (A) may not use the
consent override procedures (described elsewhere in Sec. 300.300), and
(B) is not required to consider the child eligible for services under
the requirements relating to parentally-placed private school children
with disabilities (Sec. Sec. 300.132 through 300.144).
(6) A new Sec. 300.300(d)(5) has been added to clarify that in
order for a public agency to meet the reasonable efforts requirement to
obtain informed parental consent for an initial evaluation, initial
services, or a reevaluation, a public agency must document its attempts
to obtain parental consent using the procedures in Sec. 300.322(d).
Additional Procedures for Evaluating Children With Specific Learning
Disabilities (SLD)
• Section 300.307 (Specific learning disabilities) has been
revised, as follows:
(1) Proposed paragraph (a)(1) of Sec. 300.307, which allowed a
State to prohibit the use of a severe discrepancy between intellectual
ability and achievement for determining if a child has an SLD, has been
removed, and proposed paragraph (a)(2) of Sec. 300.307 has been
redesignated as paragraph (a)(1).
(2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been
changed to clarify that the criteria adopted by the State must permit
the use of a process based on the child's response to scientific,
research-based intervention.
• Section 300.308 (Group members) has been changed to
require the eligibility group for children suspected of having SLD to
include the child's parents and a team of qualified professionals,
which must include the child's regular teacher (or if the child does
not have a regular teacher, a regular classroom teacher qualified to
teach a child of his or her age) or for a child of less than school
age, an individual qualified by the SEA to teach a child of his or her
age; and at least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher. These are the same
requirements in current Sec. 300.540.
• Section 300.309 (Determining the existence of a specific
learning disability) has been revised, as follows:
(1) Paragraph (a) of Sec. 300.309 has been changed (A) to clarify
that the group described in 300.306 may determine that a child has a
specific learning disability if the child does not achieve adequately
for the child's age or to meet State-approved grade-level standards in
one or more of eight areas (e.g., oral expression, basic reading skill,
etc.), when provided with learning experiences and instruction
appropriate for the child's age or State-approved grade-level
standards; and (B) to add ``limited English proficiency'' to the other
five conditions that could account for the child's learning problems,
and that the group considers in determining whether the child has an
SLD.
(2) Section 300.309(b) has been changed to clarify (A) that, in
order to ensure that underachievement in a child suspected of having an
SLD is not due to lack of appropriate instruction in reading or math,
the group must consider, as part of the evaluation described in
Sec. Sec. 300.304 through 300.306, data that demonstrate that prior
to, or as a part of, the referral process, the child was provided
appropriate instruction in regular education settings, delivered by
qualified personnel, and (B) to replace (in paragraph (b)(1)) the term
``high quality research-based instruction'' with ``appropriate
instruction.''
(3) Section 300.309(c) has been changed to provide that the public
agency must promptly request parental
[[Page 46544]]
consent to evaluate a child suspected of having an SLD who has not made
adequate progress after an appropriate period of time when provided
appropriate instruction, and whenever a child is referred for an
evaluation.
• Section 300.310, regarding Observation, has been revised,
as follows:
(1) Paragraph (a) of proposed Sec. 300.310 has been revised (A) to
remove the phrase ``trained in observation, and (B) to specify that the
public agency must ensure that the child is observed in the child's
learning environment.
(2) A new Sec. 300.310(b) has been added to require the
eligibility group to decide to (A) use information obtained from an
observation in routine classroom instruction and monitoring of the
child's performance that was done before the child was referred for an
evaluation, or (B) have at least one member of the group described in
Sec. 300.306(a)(1) conduct an observation of the child's academic
performance in the regular classroom after the child has been referred
for an evaluation and parental consent is obtained.
Paragraph (b) of proposed Sec. 300.310 has been redesignated as
new Sec. 300.310(c).
• Section 300.311 (Written report) has been renamed
``Specific documentation for the eligibility determination,'' and has
been revised, as follows:
(1) Section 300.311(a)(5), regarding whether the child does not
achieve commensurate with the child's age, has been modified and
expanded to add whether the child does not achieve adequately for the
child's age or to meet State-approved grade-level standards consistent
with Sec. 300.309(a)(1), and (A) the child does not make sufficient
progress to meet age or to meet State-approved grade-level standards
consistent with Sec. 300.309(a)(2)(i), or (B) the child exhibits a
pattern of strengths and weaknesses in performance, achievement, or
both, relative to age, State-approved grade level standards or
intellectual development consistent with Sec. 300.309(a)(2)(ii).
(2) Proposed Sec. 300.311(a)(6), regarding whether there are
strengths or weaknesses or both in performance or achievement or both
relative to intellectual development, has been removed.
(3) A new Sec. 300.311(a)(6) has been added to clarify that the
documentation must include a statement of the determination of the
group concerning the effects of visual, hearing, or motor disability,
mental retardation, emotional disturbance, cultural factors,
environmental or economic disadvantage, or limited English proficiency
on the child's achievement level.
(4) A new Sec. 300.311(a)(7) has been added to provide that if the
child has participated in a process that assesses the child's response
to scientific, research-based intervention, the documentation must
include the instructional strategies used and the student-centered data
collected, and documentation that the child's parents were notified
about (A) the State's policies regarding the amount and nature of
student performance data that would be collected and the general
education services that would be provided, (B) strategies for
increasing the child's rate of learning, and (C) the parents' right to
request an evaluation.
Individualized Education Programs
• Section 300.320 (Definition of IEP) has been revised in
paragraph (a)(5) to replace ``regular education environment'' with
``regular class,'' in order to be consistent with the language in the
Act.
• Section 300.321(e), regarding attendance at IEP Team
meetings, has been revised to clarify that the excusal of IEP Team
members from attending an IEP Team meeting under certain circumstances,
refers to the IEP Team members in Sec. 300.320(a)(2) through (a)(5).
• Section 300.322, regarding parent participation, has been
revised to: (1) Include, in Sec. 300.322(d), examples of the records a
public agency must keep of its attempts to involve the parents in IEP
meetings; (2) add a new Sec. 300.322(e), which requires the public
agency to take whatever action is necessary to ensure that the parent
understands the proceedings of the IEP meeting, including arranging for
an interpreter for parents with deafness or whose native language is
other than English; and (3) redesignate paragraph (e) as paragraph (f)
accordingly.
• Section 300.323(d) has been revised to require public
agencies to ensure that each regular teacher, special education
teacher, related services provider, and any other service provider who
is responsible for the implementation of a child's IEP, is informed of
his or her specific responsibilities related to implementing the
child's IEP and the specific accommodations, modifications, and
supports that must be provided for the child in accordance with the
child's IEP. These are the same requirements in current Sec.
300.342(b)(3)(i) and (b)(3)(ii).
• Section 300.323(e), regarding IEPs for children who
transfer public agencies, has been revised to: (1) Divide the provision
into three separate paragraphs (Sec. 300.323(e), (f), and (g)) for
purposes of clarity and improved readability (e.g., transfers within
the same State, transfers from another State, and transmittal of
records); (2) adopt ``school year'' in lieu of ``academic year'' as the
term commonly used by parents and public agencies; and (3) adopt other
modifiers (e.g., ``new'' and ``previous'') to distinguish between
States and public agencies that are involved in transfers by children
with disabilities.
• Section 300.324(a)(4), regarding changes to an IEP after
the annual IEP meeting for a school year, has been restructured into
two paragraphs, and a new paragraph (a)(4)(ii) has been added to
require the public agency to ensure that, if changes are made to a
child's IEP without an IEP meeting, that the child's IEP Team is
informed of the changes.
• Section 300.324(b), regarding the review and revision of
IEPs, has been changed to include a new paragraph (b)(2), to clarify
that, in conducting a review of a child's IEP, the IEP Team must
consider the same special factors it considered when developing the
child's IEP.
Subpart E--Procedural Safeguards
• Section 300.502, regarding independent educational
evaluations, has been revised, as follows:
(1) A new Sec. 300.502(b)(5) has been added to make clear that a
parent is entitled to only one independent educational evaluation at
public expense each time the public agency conducts an evaluation with
which the parent disagrees.
(2) Section 300.502(c) has been changed to clarify that if a parent
obtains an independent evaluation at public expense or shares with the
public agency an evaluation obtained at private expense, the public
agency must consider the evaluation, if it meets agency criteria, in
any decision made with respect to the provision of FAPE to the child.
• Section 300.504 (Procedural safeguards notice) has been
revised, as follows:
(1) Paragraph (a)(2) of Sec. 300.504 has been changed to add that
a copy of the procedural safeguards notice must be given upon receipt
of the first due process complaint under Sec. 300.507 in a school
year, as well as upon receipt of the first State complaint under Sec.
300.151 through 300.153.
(2) A new Sec. 300.504(a)(3) has been added to provide that the
notice must be given to the parents of a child with a disability in
accordance with the discipline procedures in Sec. 300.530(h).
[[Page 46545]]
• Section 300.506(b), regarding the requirements for
mediation, has been revised by (1) removing the provision about the
``confidentiality pledge,'' in proposed paragraph (b)(9), because it is
no longer required under the Act, and (2) changing paragraph (b)(8),
regarding the prohibition against using discussions that occur in the
mediation process, to clarify that ``civil proceedings'' includes any
Federal court or State court of a State receiving assistance under this
part.
• Section 300.509, regarding model forms to assist parents
and public agencies in filing due process complaints and parents and
other parties in filing State complaints, has been revised to add, with
respect to due process complaints, ``public agencies,'' and with
respect to State complaints, ``other parties,'' as well as parents, and
to clarify that (1) while each SEA must develop model forms, the SEA or
LEA may not require the use of the forms, and (2) parents, public
agencies, and other parties may either use the appropriate model form,
or another form or other document, so long as the form or document
meets, as appropriate, the requirements for filing a due process
complaint or a State complaint.
• Section 300.510 (Resolution process) has been revised, as
follows:
(1) Section 300.510(b)(1), regarding the resolution period, has
been changed to state that a due process hearing ``may occur'' (in lieu
of ``must occur'') by the end of the resolution period, if the parties
have not resolved the dispute that formed the basis for the due process
complaint.
(2) A new Sec. 300.510(b)(3) has been added to provide that,
except where the parties have jointly agreed to waive the resolution
process or to use mediation (notwithstanding Sec. 300.510(b)(1) and
(2)), the failure of a parent filing a due process complaint to
participate in the resolution meeting will delay the timelines for the
resolution process and due process hearing until the meeting is held.
(3) A new Sec. 300.510(b)(4) has been added to provide that if an
LEA is unable to obtain the participation of the parent in the
resolution meeting after reasonable efforts have been made, and
documented using the procedures in Sec. 300.322(d), the LEA may, at
the conclusion of the 30-day resolution period, request that a hearing
officer dismiss the parent's due process complaint.
(4) A new paragraph (b)(5) of Sec. 300.510 has been added to
provide that, if the LEA fails to hold the resolution meeting within 15
days of receiving notice of a parent's due process complaint or fails
to participate in the resolution meeting, the parent may seek the
intervention of a hearing officer to begin the due process hearing
timelines.
(5) A new Sec. 300.510(c) (Adjustments to the 30-day resolution
period) has been added that specifies exceptions to the 30-day
resolution period (e.g., (A) both parties agree in writing to waive the
resolution meeting; (B) after either the mediation or resolution
meeting starts but before the end of the 30-day period, the parties
agree in writing that no agreement is possible; or (C) if both parties
agree in writing to continue the mediation at the end of the 30-day
resolution period, but later, the parent or public agency withdraws
from the mediation process). Subsequent paragraphs have been renumbered
accordingly.
(6) Paragraph (d)(2) of Sec. 300.510 (proposed paragraph(c)(2)),
regarding the enforceability of a written settlement agreement in any
State court of competent jurisdiction or in a district court of the
United States, has been expanded to add the SEA, if the State has other
mechanisms or procedures that permit parties to seek enforcement of
resolution agreements, pursuant to a new Sec. 300.537.
• Section 300.513(a) (Decision of hearing officer) has been
revised by (1) changing the paragraph title to read ``Decision of
hearing officer on the provision of FAPE,'' and (2) clarifying that a
hearing officer's determination of whether a child received FAPE must
be based on substantive grounds.
• Section 300.515(a), regarding timelines and convenience of
hearings and reviews, has been revised to include a specific reference
to the adjusted time periods described in Sec. 300.510(c).
• Section 300.516(b), regarding the 90-day time limitation
from the date of the decision of the hearing to file a civil action,
has been revised to provide that the 90-day period begins from the date
of the decision of the hearing officer or the decision of the State
review official.
• Section 300.518 (Child's status during proceedings) has
been revised by adding a new paragraph (c), which provides that if a
complaint involves an application for initial services under this part
from a child who is transitioning from Part C of the Act to Part B and
is no longer eligible for Part C services because the child has turned
3, the public agency is not required to provide the Part C services
that the child had been receiving. If the child is found eligible for
special education and related services under Part B and the parent
consents to the initial provision of special education and related
services under Sec. 300.300(b), then the public agency must provide
those special education and related services that are not in dispute
between the parent and the public agency.
• Section 300.520(b), regarding a special rule about the
transfer of parental rights at the age of majority, has been revised to
more clearly state that a State must establish procedures for
appointing the parent of a child with a disability, or if the parent is
not available, another appropriate individual, to represent the
educational interests of the child throughout the child's eligibility
under Part B of the Act if, under State law, a child who has reached
the age of majority, but has not been determined to be incompetent, can
be determined not to have the ability to provide informed consent with
respect to the child's educational program.
Discipline Procedures
• Section 300.530(d)(1)(i), regarding services, has been
revised to be consistent with section 615(k)(1)(D)(i) of the Act, by
adding a reference to the FAPE requirements in Sec. 300.101(a).
• Section 300.530(d)(4), regarding the removal of a child
with a disability from the child's current placement for 10 school days
in the same school year, has been revised to remove the reference to
school personnel, in consultation with at least one of the child's
teachers, determining the location in which services will be provided.
• Section 300.530(d)(5), regarding removals that constitute
a change of placement under Sec. 300.536, has been revised to remove
the reference to the IEP Team determining the location in which
services will be provided.
• A new Sec. 300.530(e)(3), has been added to provide that,
if the LEA, the parent, and members of the child's IEP Team determine
that the child's behavior was the direct result of the LEA's failure to
implement the child's IEP, the LEA must take immediate steps to remedy
those deficiencies.
• Section 300.530(h), regarding notification, has been
changed to specify that, on the date on which a decision is made to
make a removal that constitutes a change in the placement of a child
with a disability because of a violation of a code of student conduct,
the LEA must notify the parents of that decision, and provide the
parents the procedural safeguards notice described in Sec. 300.504.
• Section 300.532 (Appeal) has been revised, as follows:
(1) Paragraph (a) of Sec. 300.532, regarding the conditions in
which the parent of a child with a disability or an LEA may request a
hearing, has been
[[Page 46546]]
modified to clarify that the hearing is requested by filing a complaint
pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been changed to more definitively
provide that if the LEA believes that returning the child to his or her
original placement is substantially likely to result in injury to the
child or others.
(3) Section 300.532(c)(3), regarding an expedited due process
hearing, has been adjusted to provide that unless the parents and an
LEA agree in writing to waive a resolution meeting, or agree to use the
mediation process described in Sec. 300.506, the resolution meeting
must occur within seven days of receiving notice of the due process
complaint, and the hearing may proceed within 15 days of receipt of the
due process complaint unless the matter has been resolved to
satisfaction of both parties.
(4) Proposed Sec. 300.532(c)(4), regarding the two-day timeframe
for disclosing information to the opposing party prior to an expedited
due process hearing, has been removed.
• Section 500.536(a)(2)(ii) (proposed Sec. 300.536(b)(2))
has been revised to remove the requirement that a child's behavior must
have been a manifestation of the child's disability before determining
that a series of removals constitutes a change in placement under Sec.
300.536. Paragraph (a)(2)(ii) has also been amended to reference the
child's behavior in ``previous'' incidents that resulted in the series
of removals.
• A new Sec. 300.536(b) has been added to clarify that the
public agency (subject to review through the due process and judicial
proceedings) makes the determination, on a case-by-case basis, whether
a pattern of removals constitutes a change in placement and that the
determination is subject to review through due process and judicial
determinations.
• A new Sec. 300.537 (State enforcement mechanisms) has
been added to clarify that notwithstanding Sec. 300.506(b)(7) and
Sec. 300.510(c)(2), which provide for judicial enforcement of a
written agreement reached as a result of a mediation or resolution
meeting, nothing in this part would prevent the SEA from using other
mechanisms to seek enforcement of that agreement, provided that use of
those mechanisms is not mandatory and does not delay or deny a party
the right to seek enforcement of the written agreement in a State court
of competent jurisdiction or in a district court of the United States.
Subpart F--Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
• Section 300.600 (State monitoring and enforcement) has
been revised, as follows:
(1) Section 300.600(a) has been amended to require the State to
enforce Part B of the Act in accordance with Sec. 300.604(a)(1) and
(a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been added, which provides that the
State must monitor the LEAs located in the State, using quantifiable
indicators in each of the following priority areas, and such
qualitative indicators as are needed to adequately measure performance
in those areas, including: (A) Provision of FAPE in the least
restrictive environment; (B) State exercise of general supervision,
including child find, effective monitoring, the use of resolution
meetings, and a system of transition services as defined in Sec.
300.43 and in 20 U.S.C. 1437(a)(9); and (C) disproportionate
representation of racial and ethnic groups in special education and
related services, to the extent the representation is the result of
inappropriate identification.
• A new Sec. 300.601(b)(2), regarding State use of targets
and reporting, has been added to specify that, if permitted by the
Secretary, if a State collects data on an indicator through State
monitoring or sampling, the State must collect data on the indicator at
least once during the period of the State performance plan.
• A new Sec. 300.608(b), regarding State enforcement, has
been added to specify that States are not restricted from utilizing any
other authority available to them to monitor and enforce the
requirements of Part B of the Act.
Confidentiality of Information
• Section 300.622 (Consent) has been restructured and
revised to more accurately reflect the Department's policy regarding
when parental consent is required for disclosures of personally
identifiable information, as follows:
(1) Paragraph (a) of Sec. 300.622 has been changed to provide that
parental consent must be obtained before personally identifiable
information is disclosed to parties other than officials of
participating agencies, unless the information is contained in
education records, and the disclosure is authorized without parental
consent under the regulations for the Family Educational Rights and
Privacy Act (FERPA, 34 CFR part 99).
(2) A new Sec. 300.622(b)(1) has been added to clarify that
parental consent is not required before personally identifiable
information is released to officials of participating agencies for
purposes of meeting a requirement of Part B of the Act or these
regulations.
(3) A new Sec. 300.622(b)(2) has been added to provide that
parental consent must be obtained before personally identifiable
information is released to officials of participating agencies that
provide or pay for transition services.
(4) A new paragraph (b)(3) has been added to require that, with
respect to parentally-placed private school children with disabilities,
parental consent must be obtained before any personally identifiable
information is released between officials in the LEA where the private
school is located and the LEA of the parent's residence.
(5) Proposed Sec. 300.622(c), regarding the requirement to provide
policies and procedures for use in the event that a parent refuses to
consent, has been removed because it is covered elsewhere in these
regulations.
Subpart G--Authorization, Allotment, Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
• Section 300.701(a)(1)(ii)(A), regarding the applicable
requirements of Part B of the Act that apply to freely associated
States, has been revised by removing the five listed requirements
because those requirements did not include all requirements that apply
to freely associated States. This change clarifies that freely
associated States must meet the applicable requirements that apply to
States under Part B of the Act.
• Section 300.704(c)(3)(i), regarding the requirement to
develop, annually review, and revise (if necessary) a State plan for
the high cost fund, has been revised to add a new paragraph (F) that
requires that if the State elects to reserve funds for supporting
innovative and effective ways of cost sharing, it must describe in its
State plan how these funds will be used.
• Section 300.706 (Allocation for State in which by-pass is
implemented for parentally-placed private school children with
disabilities) has been removed because it is no longer applicable. The
section has been redesignated as ``Reserved.''
Secretary of the Interior
• Section 300.707 (Use of amounts by Secretary of the
Interior) has been changed, as follows:
[[Page 46547]]
(1) The definition of Tribal governing body of a school has been
replaced with the definition of tribal governing body from 25 U.S.C.
2021(19).
(2) Section 300.707(c), regarding an additional requirement under
``Use of amounts by Secretary of the Interior,'' has been revised to
clarify that, with respect to all other children aged 3 to 21,
inclusive, on reservations, the SEA of the State in which the
reservation is located must ensure that all the requirements of Part B
of the Act are met.
• Section 300.713 (Plan for coordination of services) has
been revised to require (1) in Sec. 300.713(a), the Secretary of the
Interior to develop and implement a plan for the coordination of
services for all Indian children with disabilities residing on
reservations served by elementary schools and secondary schools for
Indian children operated or funded by the Secretary of the Interior,
and (2) in Sec. 300.713(b), the plan to provide for the coordination
of services benefiting these children from whatever source covered by
the plan, including SEAs, and State, local, and tribal juvenile and
adult correctional facilities.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 5,500 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM immediately follows this introduction.
The perspectives of parents, individuals with disabilities,
teachers, related services providers, State and local officials,
members of Congress, and others were very important in helping us to
identify where changes to the proposed regulations were necessary, and
in formulating many of the changes. In light of the comments received,
a number of significant changes are reflected in these final
regulations.
We discuss substantive issues under the subpart and section to
which they pertain. References to subparts in this analysis are to
those contained in the final regulations. The analysis generally does
not address--
(a) Minor changes, including technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that are within the purview of State
and local decision-makers.
Subpart A--General
Definitions Used in This Part
Applicability of This Part to State and Local Agencies (Sec. 300.2)
Comment: None.
Discussion: Section Sec. 300.2(c)(2) contains an incorrect
reference to Sec. 300.148(b). The correct reference should be to Sec.
300.148.
Changes: We have removed the reference to Sec. 300.148(b) and
replaced it with a reference to Sec. 300.148.
Assistive Technology Device (Sec. 300.5)
Comment: Some commenters opposed the exclusion of surgically
implanted medical devices in the definition of assistive technology
device. Another commenter recommended limiting the definition of
assistive technology device to a device that is needed to achieve
educational outcomes, rather than requiring local educational agencies
(LEAs) to pay for any assistive technology device that increases,
maintains, or improves any functional need of the child.
Discussion: The definition of assistive technology device in Sec.
300.5 incorporates the definition in section 602(1)(B) of the Act. We
do not believe the definition should be changed in the manner suggested
by the commenters because the changes are inconsistent with the
statutory definition. The definition in the Act specifically refers to
any item, piece of equipment, or product system that is used to
increase, maintain, or improve the functional capabilities of the child
and specifically excludes a medical device that is surgically implanted
or the replacement of such device. Accordingly, we continue to believe
it is appropriate to exclude surgically implanted medical devices from
this definition. In response to the second comment, Sec. 300.105(a)
requires each public agency to ensure that assistive technology devices
(or assistive technology services, or both) are made available to a
child with a disability if required as part of the child's special
education, related services, or supplementary aids and services. This
provision ties the definition to a child's educational needs, which
public agencies must meet in order to ensure that a child with a
disability receives a free appropriate public education (FAPE).
Changes: None.
Comment: One commenter requested that the regulations clarify that
an assistive technology device is not synonymous with an augmentative
communication device. A few commenters recommended including recordings
for the blind and dyslexic playback devices in the definition of
assistive technology devices. Some commenters recommended including
language in the regulations clarifying that medical devices used for
breathing, nutrition, and other bodily functions are assistive
technology devices.
Discussion: The definition of assistive technology device does not
list specific devices, nor would it be practical or possible to include
an exhaustive list of assistive technology devices. Whether an
augmentative communication device, playback devices, or other devices
could be considered an assistive technology device for a child depends
on whether the device is used to increase, maintain, or improve the
functional capabilities of a child with a disability, and whether the
child's individualized education program (IEP) Team determines that the
child needs the device in order to receive a free appropriate public
education (FAPE). However, medical devices that are surgically
implanted, including those used for breathing, nutrition, and other
bodily functions, are excluded from the definition of an assistive
technology device in section 602(1)(B) of the Act. The exclusion
applicable to a medical device that is surgically implanted includes
both the implanted component of the device, as well as its external
components.
Changes: None.
Comment: A few commenters asked whether the definition of assistive
technology device includes an internet-based instructional program, and
what the relationship is between internet-based instructional programs
and specially-designed instruction.
Discussion: An instructional program is not a device, and,
therefore, would not meet the definition of an assistive technology
device. Whether an internet-based instructional program is appropriate
for a particular child is determined by the child's IEP Team, which
would determine whether the program is needed in order for the child to
receive FAPE.
Changes: None.
Comment: A few commenters recommended including the proper
functioning of hearing aids in the definition of assistive technology
device.
Discussion: We believe that the provision requiring public agencies
to ensure that hearing aids worn in school are functioning properly is
more appropriately included in new Sec. 300.113
[[Page 46548]]
(proposed Sec. 300.105(b)). As noted in the Analysis of Comments and
Changes section discussing subpart B, we have added a new Sec. 300.113
to address the routine checking (i.e., making sure they are turned on
and working) of hearing aids and external components of surgically
implanted devices.
Changes: None.
Assistive Technology Service (Sec. 300.6)
Comment: One commenter requested clarifying ``any service'' in the
definition of assistive technology service.
Discussion: We believe the definition is clear that an assistive
technology service is any service that helps a child with a disability
select an appropriate assistive technology device, obtain the device,
or train the child to use the device.
Changes: None.
Comment: One commenter stated that services necessary to support
the use of playback devices for recordings for the blind and dyslexic
should be added to the definition of assistive technology service.
Discussion: A service to support the use of recordings for the
blind and dyslexic on playback devices could be considered an assistive
technology service if it assists a child with a disability in the
selection, acquisition, or use of the device. If so, and if the child's
IEP Team determines it is needed for the child to receive FAPE, the
service would be provided. The definition of assistive technology
service does not list specific services. We do not believe it is
practical or possible to include an exhaustive list of assistive
technology services, and therefore, decline to add the specific
assistive technology service recommended by the commenter to the
definition.
Changes: None.
Comment: One commenter recommended evaluating all children with
speech or hearing disabilities to determine if they can benefit from
the Federal Communications Commission's specialized telephone assistive
services for people with disabilities.
Discussion: Evaluations under section 614 of the Act are for the
purpose of determining whether a child has a disability and because of
that disability needs special education and related services, and for
determining the child's special education and related services needs.
It would be inappropriate under the Act to require evaluations for
other purposes or to require an evaluation for telephone assistive
services for all children with speech and hearing disabilities.
However, if it was determined that learning to use telephone assisted
services, was an important skill for a particular child (e.g., as part
of a transition plan), it would be appropriate to conduct an evaluation
of that particular child to determine if the child needed specialized
instruction in order to use such services.
Changes: None.
Comment: One commenter requested that the definition of assistive
technology service specifically exclude a medical device that is
surgically implanted, the optimization of device functioning,
maintenance of the device, and the replacement of the device.
Discussion: The definition of related services in Sec. 300.34(b)
specifically excludes a medical device that is surgically implanted,
the optimization of device functioning, maintenance of the device, or
the replacement of that device. In addition, the definition of
assistive technology device in Sec. 300.5 specifically excludes a
medical device that is surgically implanted and the replacement of that
device. We believe it is unnecessary to repeat these exclusions in the
definition of assistive technology service.
Changes: None.
Charter School (Sec. 300.7)
Comment: Several commenters suggested that we include in the
regulations the definitions of terms that are defined in other
statutes. For example, one commenter requested including the definition
of charter school in the regulations.
Discussion: Including the actual definitions of terms that are
defined in statutes other than the Act is problematic because these
definitions may change over time (i.e., through changes to statutes
that establish the definitions). In order for these regulations to
retain their accuracy over time, the U.S. Department of Education
(Department) would need to amend the regulations each time an included
definition that is defined in another statute changes. The Department
believes that this could result in significant confusion.
However, we are including the current definition of charter school
in section 5210(1) of the ESEA here for reference.
The term charter school means a public school that:
1. In accordance with a specific State statute authorizing the
granting of charters to schools, is exempt from significant State or
local rules that inhibit the flexible operation and management of
public schools, but not from any rules relating to the other
requirements of this paragraph [the paragraph that sets forth the
Federal definition];
2. Is created by a developer as a public school, or is adapted by a
developer from an existing public school, and is operated under public
supervision and direction;
3. Operates in pursuit of a specific set of educational objectives
determined by the school's developer and agreed to by the authorized
public chartering agency;
4. Provides a program of elementary or secondary education, or
both;
5. Is nonsectarian in its programs, admissions policies, employment
practices, and all other operations, and is not affiliated with a
sectarian school or religious institution;
6. Does not charge tuition;
7. Complies with the Age Discrimination Act of 1975, Title VI of
the Civil Rights Act of 1964, Title IX of the Education Amendments of
1972, Section 504 of the Rehabilitation Act of 1973, Title II of the
Americans with Disabilities Act of 1990, and Part B of the Individuals
with Disabilities Education Act;
8. Is a school to which parents choose to send their children, and
that admits students on the basis of a lottery, if more students apply
for admission than can be accommodated;
9. Agrees to comply with the same Federal and State audit
requirements as do other elementary schools and secondary schools in
the State, unless such requirements are specifically waived for the
purpose of this program [the Public Charter School Program];
10. Meets all applicable Federal, State, and local health and
safety requirements;
11. Operates in accordance with State law; and
12. Has a written performance contract with the authorized public
chartering agency in the State that includes a description of how
student performance will be measured in charter schools pursuant to
State assessments that are required of other schools and pursuant to
any other assessments mutually agreeable to the authorized public
chartering agency and the charter school.
Changes: None.
Child With a Disability (Sec. 300.8)
General (Sec. 300.8(a))
Comment: Several commenters stated that many children with fetal
alcohol syndrome (FAS) do not receive special education and related
services and recommended adding a disability category for children with
FAS to help solve this problem.
Discussion: We believe that the existing disability categories in
section
[[Page 46549]]
602(3) of the Act and in these regulations are sufficient to include
children with FAS who need special education and related services.
Special education and related services are based on the identified
needs of the child and not on the disability category in which the
child is classified. We, therefore, do not believe that adding a
separate disability category for children with FAS is necessary to
ensure that children with FAS receive the special education and related
services designed to meet their unique needs resulting from FAS.
Changes: None.
Comment: Some commenters suggested that the definition of child
with a disability be changed to ``student with a disability'' and that
the word ``student,'' rather than ``child,'' be used throughout the
regulations because students over the age of 18 are not children.
Discussion: Section 602(3) of the Act defines child with a
disability, not student with a disability. Therefore, we do not believe
it is appropriate to change the definition as requested by the
commenters. The words ``child'' and ``student'' are used throughout the
Act and we generally have used the word ``child'' or ``children,''
except when referring to services and activities for older students
(e.g., transition services, postsecondary goals).
Changes: None.
Comment: Some commenters supported Sec. 300.8(a)(2), which states
that if a child needs only a related service and not special education,
the child is not a child with a disability under the Act. Another
commenter recommended a single standard for the provision of a related
service as special education, rather than allowing States to determine
whether a related service is special education.
Discussion: Section 300.8(a)(2)(i) states that if a child has one
of the disabilities listed in Sec. 300.8(a)(1), but only needs a
related service, the child is not a child with a disability under the
Act. However, Sec. 300.8(a)(2)(ii) provides that, if a State considers
a particular service that could be encompassed by the definition of
related services also to be special education, then the child would be
determined to be a child with a disability under the Act. We believe it
is important that States have the flexibility to determine whether,
consistent with the definition of the term special education in section
602(29) of the Act and new Sec. 300.39 (proposed Sec. 300.38), such a
service should be regarded as special education and to identify a child
who needs that service as a child with a disability. States are in the
best position to determine whether a service that is included in the
definition of related services should also be considered special
education in that State.
Changes: None.
Comment: None.
Discussion: Section Sec. 300.8(a)(2)(ii) contains an incorrect
reference to Sec. 300.38(a)(2). The correct reference should be to
Sec. 300.39(a)(2).
Changes: We have removed the reference to Sec. 300.38(a)(2) and
replaced it with a reference to Sec. 300.39(a)(2).
Children Aged Three Through Nine Experiencing Developmental Delays
(Sec. 300.8(b))
Comment: Several commenters expressed support for allowing LEAs to
select a subset of the age range from three through nine for their
definition of developmental delay. A few commenters recommended
clarifying that States, not the LEAs, define the age range of children
eligible under this category of developmental delay.
Discussion: Section 300.8(b) states that the use of the
developmental delay category for a child with a disability aged three
through nine, or any subset of that age range, must be made in
accordance with Sec. 300.111(b). Section 300.111(b) gives States the
option of adopting a definition of developmental delay, but does not
require an LEA to adopt and use the term. However, if an LEA uses the
category of developmental delay, the LEA must conform to both the
State's definition of the term and the age range that has been adopted
by the State. If a State does not adopt the category of developmental
delay, an LEA may not use that category as the basis for establishing a
child's eligibility for special education and related services.
Based on the comments, it appears that Sec. 300.8(b) has been
misinterpreted as stating that LEAs are allowed to establish the age
range for defining developmental delay independent of the State. We
believe it is important to avoid such confusion and, therefore, will
modify Sec. 300.8(b) to clarify the provision.
Changes: For clarity, we have removed the phrase, ``at the
discretion of the State and LEA in accordance with Sec. 300.111(b)''
and replaced it with ``subject to the conditions in Sec. 300.111(b).''
Deafness (Sec. 300.8(c)(3))
Comment: One commenter stated that children who are hard of hearing
are often denied special education and related services because the
definition of deafness includes the phrase, ``adversely affects a
child's educational performance,'' which school district personnel
interpret to mean that the child must be failing in school to receive
special education and related services.
Discussion: As noted in the Analysis of Comments and Changes
section discussing subpart B, we have clarified in Sec. 300.101(c)
that a child does not have to fail or be retained in a course or grade
in order to be considered for special education and related services.
However, in order to be a child with a disability under the Act, a
child must have one or more of the impairments identified in section
602(3) of the Act and need special education and related services
because of that impairment. Given the change in Sec. 300.101(c), we do
not believe clarification in Sec. 300.8(c)(3) is necessary.
Changes: None.
Emotional Disturbance (Sec. 300.8(c)(4))
Comment: Numerous commenters requested defining or eliminating the
term ``socially maladjusted'' in the definition of emotional
disturbance stating that there is no accepted definition of the term,
and no valid or reliable instruments or methods to identify children
who are, or are not, ``socially maladjusted.'' Some commenters stated
that children who need special education and related services have been
denied these services, or have been inappropriately identified under
other disability categories and received inappropriate services because
the definition of emotional disturbance excludes children who are
socially maladjusted. One commenter stated that using the term
``socially maladjusted'' contributes to the negative image of children
with mental illness and does a disservice to children with mental
illness and those who seek to understand mental illness.
One commenter stated that emotional disturbance is one of the most
misused and misunderstood disability categories and is often improperly
used to protect dangerous and aggressive children who violate the
rights of others. The commenter stated that the definition of emotional
disturbance is vague and offers few objective criteria to differentiate
an emotional disability from ordinary development, and requires the
exclusion of conditions in which the child has the ability to control
his or her behavior, but chooses to violate social norms.
One commenter recommended adding autism to the list of factors in
Sec. 300.8(c)(4)(i)(A) that must be ruled out before making an
eligibility determination based on emotional disturbance. The commenter
stated that
[[Page 46550]]
many children with autism are inappropriately placed in alternative
educational programs designed for children with serious emotional and
behavioral problems.
Discussion: Historically, it has been very difficult for the field
to come to consensus on the definition of emotional disturbance, which
has remained unchanged since 1977. On February 10, 1993, the Department
published a ``Notice of Inquiry'' in the Federal Register (58 FR 7938)
soliciting comments on the existing definition of serious emotional
disturbance. The comments received in response to the notice of inquiry
expressed a wide range of opinions and no consensus on the definition
was reached. Given the lack of consensus and the fact that Congress did
not make any changes that required changing the definition, the
Department recommended that the definition of emotional disturbance
remain unchanged. We reviewed the Act and the comments received in
response to the NPRM and have come to the same conclusion. Therefore,
we decline to make any changes to the definition of emotional
disturbance.
Changes: None.
Comment: One commenter suggested that the regulations include a
process to identify children who are at risk for having an emotional
disturbance.
Discussion: We decline to include a process to identify children
who are at risk for having an emotional disturbance. A child who is at
risk for having any disability under the Act is not considered a child
with a disability under Sec. 300.8 and section 602(3) of the Act and,
therefore, is not eligible for services under the Act.
Changes: None.
Mental Retardation (Sec. 300.8(c)(6))
Comment: One commenter suggested using the term ``intellectual
disability'' in place of ``mental retardation'' because ``intellectual
disability'' is a more acceptable term. The commenter also stated that
the definition of mental retardation is outdated, and should, instead,
address a child's functional limitations in specific life areas.
Discussion: Section 602(3)(A) of the Act refers to a ``child with
mental retardation,'' not a ``child with intellectual disabilities,''
and we do not see a compelling reason to change the term. However,
States are free to use a different term to refer to a child with mental
retardation, as long as all children who would be eligible for special
education and related services under the Federal definition of mental
retardation receive FAPE.
We do not believe the definition of mental retardation needs to be
changed because it is defined broadly enough in Sec. 300.8(c)(6) to
include a child's functional limitations in specific life areas, as
requested by the commenter. There is nothing in the Act or these
regulations that would prevent a State from including ``functional
limitations in specific life areas'' in a State's definition of mental
retardation, as long as the State's definition is consistent with these
regulations.
Changes: None.
Multiple Disabilities (Sec. 300.8(c)(7))
Comment: One commenter asked why the category of multiple
disabilities is included in the regulations when it is not in the Act.
Discussion: The definition of multiple disabilities has been in the
regulations since 1977 and does not expand eligibility beyond what is
provided for in the Act. The definition helps ensure that children with
more than one disability are not counted more than once for the annual
report of children served because States do not have to decide among
two or more disability categories in which to count a child with
multiple disabilities.
Changes: None.
Orthopedic Impairment (Sec. 300.8(c)(8))
Comment: One commenter requested that the examples of congenital
anomalies in the definition of orthopedic impairment in current Sec.
300.7(c)(8) be retained.
Discussion: The examples of congenital anomalies in current Sec.
300.7(c)(8) are outdated and unnecessary to understand the meaning of
orthopedic impairment. We, therefore, decline to include the examples
in Sec. 300.8(c)(8).
Changes: None.
Other Health Impairment (Sec. 300.8(c)(9))
Comment: We received a significant number of comments requesting
that we include other examples of specific acute or chronic health
conditions in the definition of other health impairment. A few
commenters recommended including children with dysphagia because these
children have a swallowing and feeding disorder that affects a child's
vitality and alertness due to limitations in nutritional intake. Other
commenters recommended including FAS, bipolar disorders, and organic
neurological disorders. Numerous commenters requested including
Tourette syndrome disorders in the definition of other health
impairment because children with Tourette syndrome are frequently
misclassified as emotionally disturbed. A number of commenters stated
that Tourette syndrome is a neurological disorder and not an emotional
disorder, yet children with Tourette syndrome continue to be viewed as
having a behavioral or conduct disorder and, therefore, do not receive
appropriate special education and related services.
Discussion: The list of acute or chronic health conditions in the
definition of other health impairment is not exhaustive, but rather
provides examples of problems that children have that could make them
eligible for special education and related services under the category
of other health impairment. We decline to include dysphagia, FAS,
bipolar disorders, and other organic neurological disorders in the
definition of other health impairment because these conditions are
commonly understood to be health impairments. However, we do believe
that Tourette syndrome is commonly misunderstood to be a behavioral or
emotional condition, rather than a neurological condition. Therefore,
including Tourette syndrome in the definition of other health
impairment may help correct the misperception of Tourette syndrome as a
behavioral or conduct disorder and prevent the misdiagnosis of their
needs.
Changes: We have added Tourette syndrome as an example of an acute
or chronic health problem in Sec. 300.8(c)(9)(i).
Comment: A few commenters expressed concern about determining a
child's eligibility for special education services under the category
of other health impairment based on conditions that are not medically
determined health problems, such as ``central auditory processing
disorders'' or ``sensory integration disorders.'' One commenter
recommended that the regulations clarify that ``chronic or acute health
problems'' refer to health problems that are universally recognized by
the medical profession.
Discussion: We cannot make the change requested by the commenters.
The determination of whether a child is eligible to receive special
education and related services is made by a team of qualified
professionals and the parent of the child, consistent with Sec.
300.306(a)(1) and section 614(b)(4) of the Act. The team of qualified
professionals and the parent of the child must base their decision on
careful consideration of information from a variety of sources,
consistent with Sec. 300.306(c). There is nothing in the Act that
requires the team of qualified professionals and the parent to consider
only health problems that are
[[Page 46551]]
universally recognized by the medical profession, as requested by the
commenters. Likewise, there is nothing in the Act that would prevent a
State from requiring a medical evaluation for eligibility under other
health impairment, provided the medical evaluation is conducted at no
cost to the parent.
Changes: None.
Comment: One commenter stated that the category of other health
impairment is one of the most rapidly expanding eligibility categories
because the definition is vague, confusing, and redundant. The
commenter noted that the definition of other health impairment includes
terms such as ``alertness'' and ``vitality,'' which are difficult to
measure objectively.
Discussion: We believe that the definition of other health
impairment is generally understood and that the group of qualified
professionals and the parent responsible for determining whether a
child is a child with a disability are able to use the criteria in the
definition and appropriately identify children who need special
education and related services. Therefore, we decline to change the
definition.
Changes: None.
Specific Learning Disability (Sec. 300.8(c)(10))
Comment: One commenter recommended changing the definition of
specific learning disability to refer to a child's response to
scientific, research-based intervention as part of the procedures for
evaluating children with disabilities, consistent with Sec.
300.307(a). A few commenters recommended aligning the definition of
specific learning disability with the requirements for determining
eligibility in Sec. 300.309.
One commenter recommended using the word ``disability,'' instead of
``disorder,'' and referring to specific learning disabilities as a
``disability in one or more of the basic psychological processes.'' A
few commenters stated that the terms ``developmental aphasia'' and
``minimal brain dysfunction'' are antiquated and should be removed from
the definition. A few commenters questioned using ``imperfect ability''
in the definition because it implies that a child with minor problems
in listening, thinking, speaking, reading, writing, spelling, or
calculating math could be determined to have a specific learning
disability.
Discussion: The definition of specific learning disability is
consistent with the procedures for evaluating and determining the
eligibility of children suspected of having a specific learning
disability in Sec. Sec. 300.307 through 300.311. We do not believe it
is necessary to repeat these procedures in the definition of specific
learning disability.
Section 602(30) of the Act refers to a ``disorder'' in one or more
of the basic psychological processes and not to a ``disability'' in one
or more of the basic psychological processes. We believe it would be
inconsistent with the Act to change ``disorder'' to ``disability,'' as
recommended by one commenter. We do not believe that the terms
``developmental aphasia'' and ``minimal brain dysfunction'' should be
removed from the definition. Although the terms may not be as commonly
used as ``specific learning disability,'' the terms continue to be used
and we see no harm in retaining them in the definition. We do not agree
that the phrase ``imperfect ability'' implies that a child has a minor
problem and, therefore, decline to change this phrase in the definition
of specific learning disability.
Changes: None.
Comment: We received several requests to revise the definition of
specific learning disability to include specific disabilities or
disorders that are often associated with specific learning
disabilities, including Aspergers syndrome, FAS, auditory processing
disorders, and nonverbal learning disabilities.
Discussion: Children with many types of disabilities or disorders
may also have a specific learning disability. It is not practical or
feasible to include all the different disabilities that are often
associated with a specific learning disability. Therefore, we decline
to add these specific disorders or disabilities to the definition of
specific learning disability.
Changes: None.
Comment: A few commenters suggested clarifying the word
``cultural'' in Sec. 300.8(c)(10)(ii) to clarify that cultural
disadvantage or language cannot be the basis for determining that a
child has a disability.
Discussion: We believe the term ``cultural'' is generally
understood and do not see a need for further clarification. We also do
not believe that it is necessary to clarify that language cannot be the
basis for determining whether a child has a specific learning
disability. Section 300.306(b)(1)(iii), consistent with section
614(b)(5)(C) of the Act, clearly states that limited English
proficiency cannot be the basis for determining a child to be a child
with a disability under any of the disability categories in Sec.
300.8.
Changes: None.
Consent (Sec. 300.9)
Comment: Numerous commenters noted that the regulations include the
terms ``consent,'' ``informed consent,'' ``agree,'' and ``agree in
writing'' and asked whether all the terms have the same meaning.
Discussion: These terms are used throughout the regulations and are
consistent with their use in the Act. The definition of consent
requires a parent to be fully informed of all information relevant to
the activity for which consent is sought. The definition also requires
a parent to agree in writing to an activity for which consent is
sought. Therefore, whenever consent is used in these regulations, it
means that the consent is both informed and in writing.
The meaning of the terms ``agree'' or ``agreement'' is not the same
as consent. ``Agree'' or ``agreement'' refers to an understanding
between the parent and the public agency about a particular question or
issue, which may be in writing, depending on the context.
Changes: None.
Comment: A few commenters recommended adding a requirement to the
definition of consent that a parent be fully informed of the reasons
why a public agency selected one activity over another.
Discussion: We do not believe it is necessary to include the
additional requirement recommended by the commenter. The definition of
consent already requires that the parent be fully informed of all the
information relevant to the activity for which consent is sought.
Changes: None.
Comment: A few commenters requested that the Department address
situations in which a child is receiving special education services and
the child's parent wants to discontinue services because they believe
the child no longer needs special education services. A few commenters
stated that public agencies should not be allowed to use the procedural
safeguards to continue to provide special education and related
services to a child whose parent withdraws consent for the continued
provision of special education and related services.
Discussion: The Department intends to propose regulations to permit
parents who previously consented to the initiation of special education
services, to withdraw their consent for their child to receive, or
continue to receive, special education services. Because this is a
change from the Department's longstanding policies and was not proposed
in the NPRM, we will provide the public the opportunity to comment
[[Page 46552]]
on this proposed change in a separate notice of proposed rulemaking.
Changes: None.
Core Academic Subjects (Sec. 300.10)
Comment: A few commenters suggested adding the definition of core
academic subjects from the ESEA to the regulations and including any
additional subjects that are considered core academic subjects for
children in the State in which the child resides.
Discussion: The definition of core academic subjects in Sec.
300.10, consistent with section 602(4) of the Act, is the same as the
definition in section 9101 of the ESEA. We believe it is unnecessary to
change the definition to include additional subjects that particular
States consider to be core academic subjects. However, there is nothing
in the Act or these regulations that would prevent a State from
including additional subjects in its definition of ``core academic
subjects.''
Changes: None.
Comment: A few commenters requested clarifying the definition of
core academic subjects for a secondary school student when the student
is functioning significantly below the secondary level.
Discussion: The definition of core academic subjects does not vary
for secondary students who are functioning significantly below grade
level. The Act focuses on high academic standards and clear performance
goals for children with disabilities that are consistent with the
standards and expectations for all children. As required in Sec.
300.320(a), each child's IEP must include annual goals to enable the
child to be involved in and make progress in the general education
curriculum, and a statement of the special education and related
services and supplementary aids and services to enable the child to be
involved and make progress in the general education curriculum. It
would, therefore, be inconsistent and contrary to the purposes of the
Act for the definition of core academic subjects to be different for
students who are functioning below grade level.
Changes: None.
Comment: One commenter asked that the core content area of
``science'' apply to social sciences, as well as natural sciences.
Discussion: We cannot change the regulations in the manner
recommended by the commenter because the ESEA does not identify
``social sciences'' as a core academic subject. Neither does it
identify ``social studies'' as a core academic subject. Instead, it
identifies specific core academic areas: History, geography, economics,
and civics and government. The Department's nonregulatory guidance on
``Highly Qualified Teachers, Improving Teacher Quality State Grants''
(August 3, 2005) explains that if a State issues a composite social
studies license, the State must determine in which of the four areas
(history, geography, economics, and civics and government), if any, a
teacher is qualified. (see question A-20 in the Department's
nonregulatory guidance available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/programs/teacherqual/legislation.html#guidance
).
Changes: None.
Day; Business Day; School Day (Sec. 300.11)
Comment: A few commenters stated that a partial day should be
considered a school day only if there is a safety reason for a
shortened day, such as a two hour delay due to snow, and that regularly
scheduled half days should not be considered a school day for funding
purposes. One commenter stated that many schools count the time on the
bus, recess, lunch period, and passing periods as part of a school day
for children with disabilities, and recommended that the regulations
clarify that non-instructional time does not count against a child's
instructional day unless such times are counted against the
instructional day of all children. One commenter recommended the
definition of school day include days on which extended school year
(ESY) services are provided to children with disabilities.
Discussion: The length of the school day and the number of school
days do not affect the formula used to allocate Part B funds to States.
School day, as defined in Sec. 300.11(c)(1), is any day or partial day
that children are in attendance at school for instructional purposes.
If children attend school for only part of a school day and are
released early (e.g., on the last day before summer vacation), that day
would be considered to be a school day.
Section 300.11(c)(2) already defines school day as having the same
meaning for all children, including children with and without
disabilities. Therefore, it is unnecessary for the regulations to
clarify that non-instructional time (e.g., recess, lunch) is not
counted as instructional time for a child with a disability unless such
times are counted as instructional time for all children. Consistent
with this requirement, days on which ESY services are provided cannot
be counted as a school day because ESY services are provided only to
children with disabilities.
Changes: None.
Educational Service Agency (Sec. 300.12)
Comment: One commenter questioned the accuracy of the citation, 20
U.S.C. 1401(5), as the basis for including ``intermediate educational
unit'' in the definition of educational service agency.
Discussion: The definition of educational service agency is based
on the provisions in section 602(5) of the Act. The definition was
added by the Amendments to the Individuals with Disabilities Education
Act in 1997, Pub. L. 105-17, to replace the definition of
``intermediate educational unit'' (IEU) in section 602(23) of the Act,
as in effect prior to June 4, 1997. Educational service agency does not
exclude entities that were considered IEUs under prior law. To avoid
any confusion about the use of this term, the definition clarifies that
educational service agency includes entities that meet the definition
of IEU in section 602(23) of the Act as in effect prior to June 4,
1997. We believe the citation for IEU is consistent with the Act.
Changes: None.
Comment: One commenter requested that the regulations clarify that
the reference to the definition of educational service agency in the
definition of local educational agency or LEA in Sec. 300.28 means
that educational service agencies (ESAs) and Bureau of Indian Affairs
(BIA) schools have full responsibility and rights as LEAs under all
provisions of the Act, including Sec. 300.226 (early intervening
services).
Discussion: With respect to ESAs, we believe that the provisions in
Sec. 300.12 and Sec. 300.28 clarify that ESAs have full
responsibility and rights as LEAs, including the provisions in Sec.
300.226 related to early intervening services. However, the commenter's
request regarding BIA schools is inconsistent with the Act. The
definition of local educational agency in Sec. 300.28 and section
602(19) of the Act, including the provision on BIA funded schools in
section 602(19)(C) of the Act and in Sec. 300.28(c), states that the
term ``LEA'' includes an elementary school or secondary school funded
by the BIA, ``but only to the extent that the inclusion makes the
school eligible for programs for which specific eligibility is not
provided to the school in another provision of law and the school does
not have a student population that is smaller than the student
population of the LEA receiving assistance under the Act with the
smallest student population.'' Therefore, BIA schools do not have full
responsibility and rights as LEAs under all provisions of the Act.
Changes: None.
[[Page 46553]]
Excess Costs (Sec. 300.16)
Comment: One commenter stated that an example on calculating excess
costs would be a helpful addition to the regulations.
Discussion: We agree with the commenter and will include an example
of calculating excess costs in Appendix A to Part 300--Excess Costs
Calculation. In developing the example, we noted that while the
requirements in Sec. 300.202 exclude debt service and capital outlay
in the calculation of excess costs, the definition of excess costs in
Sec. 300.16 does not mention this exclusion. We believe it is
important to include this exclusion in the definition of excess costs
and will add language in Sec. 300.16 to make this clear and consistent
with the requirements in Sec. 300.202.
Changes: We have revised Sec. 300.16(b) to clarify that the
calculation of excess costs may not include capital outlay or debt
service. We have also added Appendix A to Part 300--Excess Costs
Calculation that provides an example and an explanation of how to
calculate excess costs under the Act. A reference to Appendix A has
been added in Sec. 300.16(b).
Free Appropriate Public Education or FAPE (Sec. 300.17)
Comment: One commenter stated that the requirements in Sec. Sec.
300.103 through 300.112 (Other FAPE Requirements) should be included in
the definition of FAPE.
Discussion: The other FAPE requirements in Sec. Sec. 300.103
through 300.112 are included in subpart B of these regulations, rather
than in the definition of FAPE in subpart A, to be consistent with the
order and structure of section 612 of the Act, which includes all the
statutory requirements related to State eligibility. The order and
structure of these regulations follow the general order and structure
of the provisions in the Act in order to be helpful to parents, State
and LEA personnel, and the public both in reading the regulations, and
in finding the direct link between a given statutory requirement and
the regulation related to that requirement.
Changes: None.
Comment: Some commenters stated that the definition of FAPE should
include special education services that are provided in conformity with
a child's IEP in the least restrictive environment (LRE), consistent
with the standards of the State educational agency (SEA).
Discussion: The definition of FAPE in Sec. 300.17 accurately
reflects the specific language in section 602(9) of the Act. We believe
it is unnecessary to change the definition of FAPE in the manner
recommended by the commenters because providing services in conformity
with a child's IEP in the LRE is implicit in the definition of FAPE.
Consistent with Sec. 300.17(b), FAPE means that special education and
related services must meet the standards of the SEA and the
requirements in Part B of the Act, which include the LRE requirements
in Sec. Sec. 300.114 through 300.118. Additionally, Sec. 300.17(d)
provides that FAPE means that special education and related services
are provided in conformity with an IEP that meets the requirements in
section 614(d) of the Act. Consistent with section 614(d)(1)(i)(V) of
the Act, the IEP must include a statement of the extent, if any, to
which the child will not participate with nondisabled children in the
regular education class.
Changes: None.
Comment: One commenter recommended removing ``including the
requirements of this part'' in Sec. 300.17(b) because this phrase is
not included in the Act, and makes every provision in Part B of the Act
a component of FAPE.
Discussion: Section 300.17 is the same as current Sec. 300.13,
which has been in the regulations since 1977. We do not believe that
Sec. 300.17 makes every provision of this part applicable to FAPE.
Changes: None.
Highly Qualified Special Education Teachers (Sec. 300.18)
Comment: One commenter requested including the definition of
``highly qualified teacher,'' as defined in the ESEA, in the
regulations.
Discussion: The ESEA defines ``highly qualified'' with regard to
any public elementary or secondary school teacher. For the reasons set
forth earlier in this notice, we are not adding definitions from other
statutes to these regulations. However, we will include the current
definition here for reference.
The term ``highly qualified''--
(A) When used with respect to any public elementary school or
secondary school teacher teaching in a State, means that--
(i) The teacher has obtained full State certification as a teacher
(including certification obtained through alternative routes to
certification) or passed the State teacher licensing examination, and
holds a license to teach in such State, except that when used with
respect to any teacher teaching in a public charter school, the term
means that the teacher meets the requirements set forth in the State's
public charter school law; and
(ii) The teacher has not had certification or licensure
requirements waived on an emergency, temporary, or provisional basis;
(B) When used with respect to--
(i) An elementary school teacher who is new to the profession,
means that the teacher--
(I) Holds at least a bachelor's degree; and
(II) Has demonstrated, by passing a rigorous State test, subject
knowledge and teaching skills in reading, writing, mathematics, and
other areas of the basic elementary school curriculum (which may
consist of passing a State-required certification or licensing test or
tests in reading, writing, mathematics, and other areas of the basic
elementary school curriculum); or
(ii) A middle or secondary school teacher who is new to the
profession, means that the teacher holds at least a bachelor's degree
and has demonstrated a high level of competency in each of the academic
subjects in which the teacher teaches by--
(I) Passing a rigorous State academic subject test in each of the
academic subjects in which the teacher teaches (which may consist of a
passing level of performance on a State-required certification or
licensing test or tests in each of the academic subjects in which the
teacher teaches); or
(II) Successful completion, in each of the academic subjects in
which the teacher teaches, of an academic major, a graduate degree,
coursework equivalent to an undergraduate academic major, or advanced
certification or credentialing; and
(C) When used with respect to an elementary, middle, or secondary
school teacher who is not new to the profession, means that the teacher
holds at least a bachelor's degree and--
(i) Has met the applicable standard in clause (i) or (ii) of
subparagraph (B), which includes an option for a test; or
(ii) Demonstrates competence in all the academic subjects in which
the teacher teaches based on a high objective uniform State standard of
evaluation that--
(I) Is set by the State for both grade appropriate academic subject
matter knowledge and teaching skills;
(II) Is aligned with challenging State academic content and student
academic achievement standards and developed in consultation with core
content specialists, teachers, principals, and school administrators;
(III) Provides objective, coherent information about the teacher's
attainment of core content knowledge in
[[Page 46554]]
the academic subjects in which a teacher teaches;
(IV) Is applied uniformly to all teachers in the same academic
subject and the same grade level throughout the State;
(V) Takes into consideration, but not be based primarily on, the
time the teacher has been teaching in the academic subject;
(VI) Is made available to the public upon request; and
(VII) May involve multiple, objective measures of teacher
competency.
Changes: None.
Comment: A few commenters recommended defining the term ``special
education teacher.'' Other commenters recommended that States define
highly qualified special education teachers and providers. One
commenter stated that the regulations should define the role of the
special education teacher as supplementing and supporting the regular
education teacher who is responsible for teaching course content.
One commenter requested that the regulations clarify that a special
education teacher who is certified as a regular education teacher with
an endorsement in special education meets the requirements for a highly
qualified special education teacher. Another commenter recommended
changing the definition of a highly qualified special education teacher
so that States cannot provide a single certification for all areas of
special education. One commenter requested clarification regarding the
highly qualified special education teacher standards for special
education teachers with single State endorsements in the area of
special education. A few commenters recommended clarifying that when a
State determines that a teacher is fully certified in special
education, this means that the teacher is knowledgeable and skilled in
the special education area in which certification is received. One
commenter recommended that teacher qualifications and standards be
consistent from State to State.
Discussion: Section 300.18(b), consistent with section 602(10)(B)
of the Act, provides that a highly qualified special education teacher
must have full State special education certification (including
certification obtained through alternative routes to certification) or
have passed the State special education teacher licensing examination
and hold a license to teach in the State; have not had special
education certification or licensure requirements waived on an
emergency, temporary, or provisional basis; and hold at least a
bachelor's degree. Except to the extent addressed in Sec. 300.18(c)
and (d), special education teachers who teach core academic subjects
must, in addition to meeting these requirements, demonstrate subject-
matter competency in each of the core academic subjects in which the
teacher teaches.
States are responsible for establishing certification and licensing
standards for special education teachers. Each State uses its own
standards and procedures to determine whether teachers who teach within
that State meet its certification and licensing requirements. Teacher
qualifications and standards are consistent from State to State to the
extent that States work together to establish consistent criteria and
reciprocity agreements. It is not the role of the Federal government to
regulate teacher certification and licensure.
Changes: None.
Comment: One commenter stated that LEAs must train special
education teachers because most special education teachers are not
highly qualified upon graduation from a college program. A few
commenters recommended that the regulations encourage SEAs to require
coursework for both special education and general education teachers in
the areas of behavior management and classroom management. One
commenter recommended that the requirements for special education
teachers include competencies in reading instruction and in properly
modifying and accommodating instruction. Another commenter supported
training in special education and related services for general
education teachers. One commenter expressed support for collaboration
between special education and regular education teachers. Some
commenters recommended requiring a highly qualified general education
teacher teaching in a self-contained special education classroom to
work in close collaboration with the special education teacher assigned
to those children. Another commenter stated that the definition of a
highly qualified special education teacher will be meaningless if the
training for teachers is not consistent across States.
Discussion: Personnel training needs vary across States and it
would be inappropriate for the regulations to require training on
specific topics. Consistent with Sec. 300.156 and section 612(a)(14)
of the Act, each State is responsible for ensuring that teachers,
related services personnel, paraprofessionals, and other personnel
serving children with disabilities under Part B of the Act are
appropriately and adequately prepared and trained and have the content
knowledge and skills required to serve children with disabilities.
Changes: None.
Comment: One commenter recommended that the regulations include
standards for highly qualified special education paraprofessionals,
similar to the requirements under the ESEA.
Discussion: Section Sec. 300.156(b) specifically requires the
qualifications for paraprofessionals to be consistent with any State-
approved or State-recognized certification, licensing, registration, or
other comparable requirements that apply to the professional discipline
in which those personnel are providing special education or related
services.
In addition, the ESEA requires that paraprofessionals, including
special education paraprofessionals who assist in instruction in title
I-funded programs, have at least an associate's degree, have completed
at least two years of college, or meet a rigorous standard of quality
and demonstrate, through a formal State or local assessment, knowledge
of, and the ability to assist in instruction in reading, writing, and
mathematics, reading readiness, writing readiness, or mathematics
readiness, as appropriate. Paraprofessionals in title I schools do not
need to meet these requirements if their role does not involve
instructional support, such as special education paraprofessionals who
solely provide personal care services. For more information on the ESEA
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119
of the ESEA, and the Department's nonregulatory guidance, Title I
Paraprofessionals (March 1, 2004), which can be found on the
Department's Web site at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/policy/elsec/guid/paraguidance.pdf
.
We believe these requirements are sufficient to ensure that
children with disabilities receive services from paraprofessionals who
are appropriately and adequately trained. Therefore, we decline to
include additional standards for paraprofessionals.
Changes: None.
Comment: Numerous commenters requested clarification as to whether
early childhood and preschool special education teachers must meet the
highly qualified special education teacher standards. Several
commenters stated that requiring early childhood and preschool special
education teachers to meet the highly qualified special education
teacher standards would exceed statutory authority and exacerbate the
shortage of special education teachers. A few commenters supported
allowing States to decide
[[Page 46555]]
whether the highly qualified special education teacher requirements
apply to preschool teachers.
Discussion: The highly qualified special education teacher
requirements apply to all public elementary school and secondary school
special education teachers, including early childhood or preschool
teachers if a State includes the early childhood or preschool programs
as part of its elementary school and secondary school system. If the
early childhood or preschool program is not a part of a State's public
elementary school and secondary school system, the highly qualified
special education teacher requirements do not apply.
Changes: None.
Comment: One commenter requested clarification regarding the scope
of the highly qualified special education teacher requirements for
instructors who teach core academic subjects in specialized schools,
such as schools for the blind, and recommended that there be different
qualifications for instructors who provide orientation and mobility
instruction or travel training for children who are blind or visually
impaired.
One commenter requested adding travel instructors to the list of
special educators who need to be highly qualified. Some commenters
recommended adding language to include certified and licensed special
education teachers of children with low incidence disabilities as
highly qualified special education teachers. A few commenters requested
that the requirements for teachers who teach children with visual
impairments include competencies in teaching Braille, using assistive
technology devices, and conducting assessments, rather than
competencies in core subject areas. Some commenters requested more
flexibility in setting the standards for teachers of children with
visual impairments and teachers of children with other low incidence
disabilities. One commenter requested clarification regarding the
requirements for teachers of children with low incidence disabilities.
Discussion: Consistent with Sec. 300.156 and section 612(a)(14) of
the Act, it is the responsibility of each State to ensure that teachers
and other personnel serving children with disabilities under Part B of
the Act are appropriately and adequately prepared and trained and have
the content knowledge and skills to serve children with disabilities,
including teachers of children with visual impairments and teachers of
children with other low incidence disabilities.
The highly qualified special education teacher requirements apply
to all public school special education teachers. There are no separate
or special provisions for special education teachers who teach in
specialized schools, for teachers of children who are blind and
visually impaired, or for teachers of children with other low incidence
disabilities and we do not believe there should be because these
children should receive the same high quality instruction from teachers
who meet the same high standards as all other teachers and who have the
subject matter knowledge and teaching skills necessary to assist these
children to achieve to high academic standards.
Changes: None.
Comment: One commenter requested clarification on how the highly
qualified special education teacher requirements impact teachers who
teach children of different ages. A few commenters recommended adding a
provision for special education teachers who teach at multiple age
levels, similar to the special education teacher who teaches multiple
subjects.
Discussion: The Act does not include any special requirements for
special education teachers who teach at multiple age levels. Teachers
who teach at multiple age levels must meet the same requirements as all
other special education teachers to be considered highly qualified. The
clear intent of the Act is to ensure that all children with
disabilities have teachers with the subject matter knowledge and
teaching skills necessary to assist children with disabilities achieve
to high academic standards. Therefore, we do not believe there should
be different requirements for teachers who teach at multiple age
levels.
Changes: None.
Comment: One commenter recommended including specific criteria
defining a highly qualified special education literacy teacher.
Discussion: Under Sec. 300.18(a), a special education literacy
teacher who is responsible for teaching reading must meet the ESEA
highly qualified teacher requirements including competency in reading,
as well as the highly qualified special education teacher requirements.
We do not believe that further regulation is needed as the Act leaves
teacher certification and licensing requirements to States.
Changes: None.
Comment: Many commenters expressed concern that the highly
qualified special education teacher standards will make it more
difficult to recruit and retain special education teachers. Some
commenters stated that most special education teachers will need to
hold more than one license or certification to meet the highly
qualified special education teacher requirements and that the time and
expense needed to obtain the additional licenses or certifications is
unreasonable. One commenter stated that schools will have to hire two
or three teachers for every one special education teacher, thereby
increasing education costs.
One commenter expressed concern about losing special education
teachers who teach multiple subjects in alternative education and
homebound programs because they will not meet the highly qualified
special education teacher requirements. One commenter expressed concern
that the requirements set a higher standard for teachers in self-
contained classrooms. Another commenter stated that requiring special
education teachers in secondary schools to be experts in all subjects
is a burden that elementary teachers do not have.
Discussion: The Department understands the concerns of the
commenters. However, the clear intention of the Act is to ensure that
all children with disabilities have teachers with the subject-matter
knowledge and teaching skills necessary to assist children with
disabilities achieve to high academic standards.
To help States and districts meet these standards, section 651 of
the Act authorizes State Personnel Development grants to help States
reform and improve their systems for personnel preparation and
professional development in early intervention, educational, and
transition services in order to improve results for children with
disabilities. In addition, section 662 of the Act authorizes funding
for institutions of higher education, LEAs, and other eligible local
entities to improve or develop new training programs for teachers and
other personnel serving children with disabilities.
Changes: None.
Comment: One commenter requested further clarification regarding
the requirements for secondary special education teachers to be highly
qualified in the core subjects they teach, as well as certified in
special education.
Discussion: Consistent with Sec. 300.18(a) and (b) and section
602(10)(A) and (B) of the Act, secondary special education teachers who
teach core academic subjects must meet the highly qualified teacher
standards established in the ESEA (which includes competency in each
core academic subject the teacher teaches) and the highly qualified
special education teacher requirements in
[[Page 46556]]
Sec. 300.18(b) and section 602(10)(B) of the Act.
Consistent with Sec. 300.18(c) and section 602(10)(C) of the Act,
a secondary special education teacher who teaches core academic
subjects exclusively to children assessed against alternate achievement
standards can satisfy the highly qualified special education teacher
requirements by meeting the requirements for a highly qualified
elementary teacher under the ESEA, or in the case of instruction above
the elementary level, have subject matter knowledge appropriate to the
level of instruction being provided, as determined by the State, to
effectively teach to those standards.
Changes: None.
Comment: One commenter expressed concern that the highly qualified
teacher requirements will drive secondary teachers who teach children
with emotional and behavioral disorders out of the field and requested
that the requirements be changed to require special education
certification in one core area, plus a reasonable amount of training in
other areas. Another commenter recommended permitting special education
teachers of core academic subjects at the elementary level to be highly
qualified if they major in elementary education and have coursework in
math, language arts, and science. One commenter recommended that any
special education teacher certified in a State prior to 2004 be exempt
from having to meet the highly qualified special education teacher
requirements.
Discussion: The definition of a highly qualified special education
teacher in Sec. 300.18 accurately reflects the requirements in section
602(10) of the Act. To change the regulations in the manner recommended
by the commenters would be inconsistent with the Act and the Act's
clear intent of ensuring that all children with disabilities have
teachers with the subject matter knowledge and teaching skills
necessary to assist children with disabilities achieve to high academic
standards. Therefore, we decline to change the requirements in Sec.
300.18.
Changes: None.
Comment: One commenter stated that there is a double standard in
the highly qualified teacher requirements because general education
teachers are not required to be certified in special education even
though they teach children with disabilities. Another commenter
recommended requiring general education teachers who teach children
with disabilities to meet the highly qualified special education
teacher requirements.
Discussion: We cannot make the changes suggested by the commenter
because the Act does not require general education teachers who teach
children with disabilities to be certified in special education.
Further, the legislative history of the Act would not support these
changes. Note 21 in the U.S. House of Representatives Conference Report
No. 108-779 (Conf. Rpt.), p. 169, clarifies that general education
teachers who are highly qualified in particular subjects and who teach
children with disabilities in those subjects are not required to have
full State certification as a special education teacher. For example, a
reading specialist who is highly qualified in reading instruction, but
who is not certified as a special education teacher, would not be
prohibited from providing reading instruction to children with
disabilities.
The Act focuses on ensuring that children with disabilities achieve
to high academic standards and have access to the same curriculum as
other children. In order to achieve this goal, teachers who teach core
academic subjects to children with disabilities must be competent in
the core academic areas in which they teach. This is true for general
education teachers, as well as special education teachers.
Changes: None.
Comment: Some commenters expressed concern that LEAs may reduce
placement options for children with disabilities because of the
shortage of highly qualified teachers. A few commenters recommended
requiring each State to develop and implement policies to ensure that
teachers meet the highly qualified special education teacher
requirements, while maintaining a full continuum of services and
alternative placements to respond to the needs of children with
disabilities.
Discussion: It would be inconsistent with the LRE requirements in
section 612(a)(5) of the Act for a public agency to restrict the
placement options for children with disabilities. Section 300.115,
consistent with section 612(a)(5) of the Act, requires each public
agency to ensure that a continuum of alternative placements is
available to meet the needs of children with disabilities.
The additional requirements requested by the commenter are not
necessary because States already must develop and implement policies to
ensure that the State meets the LRE and personnel standards
requirements in sections 612(a)(5) and (a)(14) of the Act,
respectively.
Changes: None.
Comment: One commenter stated that personnel working in charter
schools should meet the same requirements as all other public school
personnel. Several commenters expressed concern regarding the exemption
of charter school teachers from the highly qualified special education
teacher requirements. One commenter stated that while a special
education teacher in a charter school does not have to be licensed or
certified by the State if the State's charter school law does not
require such licensure or certification, all other elements of the
highly qualified special education teacher requirements should apply to
charter school teachers, including demonstrated competency in core
academic subject areas.
Discussion: The certification requirements for charter school
teachers are established in a State's public charter school law, and
may differ from the requirements for full State certification for
teachers in other public schools. The Department does not have the
authority to change State charter school laws to require charter school
teachers to meet the same requirements as all other public school
teachers.
In addition to the certification requirements established in a
State's public charter school law, if any, section 602(10) of the Act
requires charter school special education teachers to hold at least a
bachelor's degree and, if they are teaching core academic subjects,
demonstrate competency in the core academic areas they teach. We will
add language in Sec. 300.18(b) to clarify that special education
teachers in public charter schools must meet the certification or
licensing requirements, if any, established by a State's public charter
school law.
Changes: We have added the words ``if any'' in Sec.
300.18(b)(1)(i) to clarify that special education teachers in public
charter schools must meet any certification or licensing requirements
established by a State's public charter school law.
Comment: One commenter stated that the regulations use the terms
``highly qualified'' and ``fully certified'' in a manner that implies
they are synonymous, and recommended that the regulations maintain the
distinction between the two terms.
Discussion: Full State certification is determined under State law
and policy and means that a teacher has fully met State requirements,
including any requirements related to a teacher's years of teaching
experience. For example, State requirements may vary for first-year
teachers versus teachers who are not new to the profession. Full State
[[Page 46557]]
certification also means that the teacher has not had certification or
licensure requirements waived on an emergency, temporary, or
provisional basis.
The terms ``highly qualified'' and ``fully certified'' are
synonymous when used to refer to special education teachers who are not
teaching core academic subjects. For special education teachers
teaching core academic subjects, however, both full special education
certification or licensure and subject matter competency are required.
Changes: We have changed the heading to Sec. 300.18(a) and the
introductory material in Sec. 300.18(a) and (b)(1) for clarity.
Comment: A few commenters recommended prohibiting States from
creating new categories to replace emergency, temporary, or provisional
licenses that lower the standards for full certification in special
education.
Discussion: We do not believe it is necessary to add the additional
language recommended by the commenters. Section 300.18(b)(1)(ii) and
section 602(10)(B)(ii) of the Act are clear that a teacher cannot be
considered a highly qualified special education teacher if the teacher
has had special education certification or licensure waived on an
emergency, temporary, or provisional basis. This would include any new
certification category that effectively allows special education
certification or licensure to be waived on an emergency, temporary, or
provisional basis.
Changes: None.
Comment: Some commenters supported alternative route to
certification programs for special education teachers. One commenter
stated that these programs are necessary to increase the number of
highly qualified teachers and will help schools on isolated tribal
reservations recruit, train, and retain highly qualified teachers.
However, numerous commenters expressed concerns and objections to
alternative route to certification programs for special education
teachers. Several commenters stated that allowing individuals making
progress in an alternative route to certification program to be
considered highly qualified and fully certified creates a lower
standard, short-changes children, is not supported by any provision in
the Act, and undermines the requirement for special education teachers
to be fully certified. One commenter stated that this provision is
illogical and punitive to higher education teacher training programs
because it allows individuals in an alternative route to certification
program to be considered highly qualified and fully certified during
their training program, while at the same time individuals in regular
teacher training programs that meet the same requirements as
alternative route to certification programs are not considered highly
qualified or fully certified. One commenter argued that an individual
participating in an alternative route to certification program would
need certification waived on an emergency, temporary, or provisional
basis, which means the individual has not met the requirements in Sec.
300.18(b)(1)(ii). Another commenter stated that three years is not
enough time for a teacher enrolled in an alternative route to
certification program to assume the functions of a teacher.
Discussion: While we understand the general objections to
alternative route to certification programs expressed by the
commenters, the Department believes that alternative route to
certification programs provide an important option for individuals
seeking to enter the teaching profession. The requirements in Sec.
300.18(b)(2) were included in these regulations to provide consistency
with the requirements in 34 CFR 200.56(a)(2)(ii)(A) and the ESEA,
regarding alternative route to certification programs. To help ensure
that individuals participating in alternative route to certification
programs are well trained, there are certain requirements that must be
met as well as restrictions on who can be considered to have obtained
full State certification as a special education teacher while enrolled
in an alternative route to certification program. An individual
participating in an alternative route to certification program must (1)
hold at least a bachelor's degree and have demonstrated subject-matter
competency in the core academic subject(s) the individual will be
teaching; (2) assume the functions of a teacher for not more than three
years; and (3) demonstrate satisfactory progress toward full
certification, as prescribed by the State. The individual also must
receive, before and while teaching, high-quality professional
development that is sustained, intensive, and classroom-focused and
have intensive supervision that consists of structured guidance and
regular ongoing support.
It was the Department's intent to allow an individual who wants to
become a special education teacher, but does not plan to teach a core
academic subject, to enroll in an alternative route to certification
program and be considered highly qualified, provided that the
individual holds at least a bachelor's degree. This requirement,
however, was inadvertently omitted in the NPRM. Therefore, we will add
appropriate references in Sec. 300.18(b)(3) to clarify that an
individual participating in an alternative route to certification
program in special education who does not intend to teach a core
academic subject, may be considered a highly qualified special
education teacher if the individual holds at least a bachelor's degree
and participates in an alternative route to certification program that
meets the requirements in Sec. 300.18(b)(2).
Changes: Appropriate citations have been added in Sec.
300.18(b)(3) to clarify the requirements for individuals enrolled in
alternative route to special education teacher certification programs.
Comment: A few commenters recommended more specificity in the
requirements for teachers participating in alternative route to
certification programs, rather than giving too much discretion to
States to develop programs that do not lead to highly qualified
personnel. However, one commenter recommended allowing States the
flexibility to create their own guidelines for alternative route to
certification programs.
Several commenters recommended clarifying the requirements for the
teacher supervising an individual who is participating in an
alternative route to certification program. One commenter recommended
requiring supervision, guidance, and support by a professional with
expertise in the area of special education in which the teacher desires
to become certified.
Discussion: Consistent with Sec. 300.18(b)(2)(ii), States are
responsible for ensuring that the standards for alternative route to
certification programs in Sec. 300.18(b)(2)(i) are met. It is,
therefore, up to each State to determine whether to require specific
qualifications for the teachers responsible for supervising teachers
participating in an alternative route to certification program.
Changes: None.
Comment: One commenter requested clarification regarding the roles
and responsibilities of special education teachers who do not teach
core academic subjects.
Discussion: Special education teachers who do not directly instruct
children in any core academic subject or who provide only consultation
to highly qualified teachers of core academic subjects do not need to
demonstrate subject-matter competency in those subjects. These special
educators could provide consultation services to other teachers, such
as adapting curricula,
[[Page 46558]]
using behavioral supports and interventions, or selecting appropriate
accommodations for children with disabilities. They could also assist
children with study skills or organizational skills and reinforce
instruction that the child has already received from a highly qualified
teacher in that core academic subject.
Changes: None.
Comment: Many commenters recommended including language in the
regulations to clarify that special education teachers who do not teach
core academic subjects and provide only consultative services must
restrict their services to areas that supplement, not replace, the
direct instruction provided by a highly qualified general education
teacher. One commenter recommended that States develop criteria for
teachers who provide consultation services. Another commenter stated
that special education teachers should not work on a consultative
basis.
Discussion: The definition of consultation services and whether a
special education teacher provides consultation services are matters
best left to the discretion of each State. While States may develop
criteria to distinguish consultation versus instructional services, the
Act and the ESEA are clear that teachers who provide direct instruction
in a core academic subject, including special education teachers, must
meet the highly qualified teacher requirements, which include
demonstrated competency in each of the core academic subjects the
teacher teaches.
Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching
to Alternate Achievement Standards (Sec. 300.18(c))
Comment: One commenter recommended replacing ``alternate
achievement standards'' with ``alternate standards.'' A few commenters
requested including a definition of alternate achievement standards in
the regulations.
Discussion: ``Alternate achievement standards'' is statutory
language and, therefore, it would be inappropriate to change
``alternate achievement standards'' to ``alternate standards.''
For the reasons set forth earlier in this notice, we are not adding
definitions from other statutes to these regulations. However, we will
include the current description of alternate achievement standards in
34 CFR 200.1(d) of the ESEA regulations here for reference.
For children under section 602(3) of the Individuals with
Disabilities Education Act with the most significant cognitive
disabilities who take an alternate assessment, a State may, through a
documented and validated standards-setting process, define alternate
academic achievement standards, provided those standards--
(1) Are aligned with the State's academic content standards;
(2) Promote access to the general curriculum; and
(3) Reflect professional judgment of the highest achievement
standards possible.
Changes: None.
Comment: Several commenters expressed concern with allowing high
school students with significant cognitive disabilities to be taught by
a certified elementary school teacher. One commenter stated that high
school students with disabilities should be prepared to lead productive
adult lives, and not be treated as young children. Another commenter
stated that these requirements foster low expectations for children
with the most significant cognitive disabilities and will be used to
justify providing children with instruction that is not age appropriate
or that denies access to the general education curriculum. A few
commenters stated that the requirements for special education teachers
teaching to alternate achievement standards should be the same as the
requirements for all special education teachers.
Some commenters recommended requiring teachers who teach to
alternate achievement standards to have subject matter knowledge to
provide instruction aligned to the academic content standards for the
grade level in which the student is enrolled. One commenter recommended
requiring any special education teacher teaching to alternate
achievement standards to demonstrate knowledge of age-appropriate core
curriculum content to ensure children with disabilities are taught a
curriculum that is closely tied to the general education curriculum
taught to other children of the same age.
Discussion: The regulations promulgated under section 1111(b)(1) of
the ESEA permit States to use alternate achievement standards to
evaluate the performance of a small group of children with the most
significant cognitive disabilities who are not expected to meet grade-
level standards even with the best instruction. An alternate
achievement standard sets an expectation of performance that differs in
complexity from a grade-level achievement standard. Section
602(10)(C)(ii) of the Act, therefore, allows special education teachers
teaching exclusively children who are assessed against alternate
achievement standards to meet the highly qualified teacher standards
that apply to elementary school teachers. In the case of instruction
above the elementary level, the teacher must have subject matter
knowledge appropriate to the level of instruction being provided, as
determined by the State, in order to effectively teach to those
standards.
We do not agree that allowing middle and high school students with
the most significant cognitive disabilities to be taught by teachers
who meet the qualifications of a highly qualified elementary teacher
fosters low expectations, encourages students to be treated like
children, promotes instruction that is not age appropriate, or denies
students access to the general curriculum. Although alternate
achievement standards differ in complexity from grade-level standards,
34 CFR 200.1(d) requires that alternate achievement standards be
aligned with the State's content standards, promote access to the
general curriculum, and reflect professional judgment of the highest
achievement standards possible. In short, we believe that the
requirements in Sec. 300.18(c) will ensure that teachers teaching
exclusively children who are assessed against alternate achievement
standards will have the knowledge to provide instruction aligned to
grade-level content standards so that students with the most
significant cognitive disabilities are taught a curriculum that is
closely tied to the general curriculum.
Changes: None.
Comment: A few commenters requested clarification regarding the
meaning of ``subject matter knowledge appropriate to the level of
instruction provided'' in Sec. 300.18(c)(2).
Discussion: Section 300.18(c)(2) requires that if a teacher (who is
teaching exclusively to alternate achievement standards) is teaching
students who need instruction above the elementary school level, the
teacher must have subject matter knowledge appropriate to the level of
instruction needed to effectively teach to those standards. The purpose
of this requirement is to ensure that teachers exclusively teaching
children who are assessed based on alternate academic achievement
standards above the elementary level have sufficient subject matter
knowledge to effectively instruct in each of the core academic subjects
being taught, at the level of difficulty being taught. For example, if
a high school student (determined by the IEP Team to be assessed
against alternate achievement standards) has knowledge and skills in
math at the 7th grade level,
[[Page 46559]]
but in all other areas functions at the elementary level, the teacher
would need to have knowledge in 7th grade math in order to effectively
teach the student to meet the 7th grade math standards. No further
clarification is necessary.
Changes: None.
Comment: A few commenters recommended that the regulations include
requirements for teachers who provide instruction to children assessed
against modified achievement standards. Several commenters stated that
the requirements for teachers teaching children assessed against
modified achievement standards should be the same for teachers teaching
children assessed against alternate achievement standards.
Discussion: The Department has not issued final regulations
addressing modified achievement standards and the specific criteria for
determining which children with disabilities should be assessed based
on modified achievement standards. As proposed, the modified
achievement standards must be aligned with the State's academic content
standards for the grade in which the student is enrolled and provide
access to the grade-level curriculum. For this reason, we see no need
for a further exception to the ``highly qualified teacher'' provisions
at this time.
Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching
Multiple Subjects (Sec. 300.18(d))
Comment: A few commenters stated that the requirements for teachers
who teach two or more core academic subjects exclusively to children
with disabilities are confusing. Some commenters requested additional
guidance and flexibility for special education teachers teaching two or
more core academic subjects. Other commenters recommended allowing
special education teachers more time to become highly qualified in all
the core academic subjects they teach.
Discussion: The requirements in Sec. 300.18(d), consistent with
section 602(10)(C) of the Act, provide flexibility for teachers who
teach multiple core academic subjects exclusively to children with
disabilities. Section 300.18(d)(2) and (3) allows teachers who are new
and not new in the profession to demonstrate competence in all the core
academic subjects in which the teacher teaches using a single, high
objective uniform State standard of evaluation (HOUSSE) covering
multiple subjects. In addition, Sec. 300.18(d)(3) gives a new special
education teacher who teaches multiple subjects, and who is highly
qualified in mathematics, language arts, or science at the time of
hire, two years after the date of employment to demonstrate competence
in the other core academic subjects in which the teacher teaches. We do
not believe that further clarification is necessary.
Changes: None.
Comment: One commenter requested clarification regarding the
meaning of the following phrases in Sec. 300.18(d): ``multiple
subjects,'' ``in the same manner,'' and ``all the core academic
subjects.''
Discussion: ``Multiple subjects'' refers to two or more core
academic subjects. Section 300.18(d) allows teachers who are new or not
new to the profession to demonstrate competence in ``all the core
subjects'' in which the teacher teaches ``in the same manner'' as is
required for an elementary, middle, or secondary school teacher under
the ESEA. As used in this context, ``in the same manner'' means that
special education teachers teaching multiple subjects can demonstrate
competence in the core academic subjects they teach in the same way
that is required for elementary, middle, or secondary school teachers
in 34 CFR 200.56 of the ESEA regulations. ``All the core subjects''
refers to the core academic subjects, which include English, reading or
language arts, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography, consistent with
Sec. 300.10.
Changes: None.
Comment: One commenter recommended ensuring that the requirements
in Sec. 300.18(d) apply to special education teachers who teach
children with severe disabilities in more than one core subject area.
Discussion: The requirements in Sec. 300.18(d) do not exclude
teachers who teach children with severe disabilities in more than one
core subject area. Consistent with Sec. 300.18(d) and section
602(10)(D) of the Act, the requirements apply to special education
teachers who teach two or more core academic subjects exclusively to
children with disabilities, including, but not limited to, children
with severe disabilities. We do not believe that further clarification
is necessary.
Changes: None.
Comment: A significant number of commenters recommended adding
language to the regulations to permit a separate HOUSSE for special
education teachers, including a single HOUSSE that covers multiple
subjects. Some commenters supported a single HOUSSE covering multiple
subjects for special education teachers, as long as those adaptations
of a State's HOUSSE for use with special education teachers do not
establish lower standards for the content knowledge requirements for
special education teachers.
Discussion: States have the option of developing a method by which
teachers can demonstrate competency in each subject they teach on the
basis of a HOUSSE. Likewise, we believe States should have the option
of developing a separate HOUSSE for special education teachers.
States have flexibility in developing their HOUSSE evaluation as
long as it meets each of the following criteria established in section
9101(23)(C)(ii) of the ESEA:
• Be set by the State for both grade-appropriate academic
subject-matter knowledge and teaching skills;
• Be aligned with challenging State academic content and
student academic achievement standards and developed in consultation
with core content specialists, teachers, principals, and school
administrators;
• Provide objective, coherent information about the
teacher's attainment of core content knowledge in the academic subjects
in which a teacher teaches;
• Be applied uniformly to all teachers in the same academic
subject and teaching in the same grade level throughout the State;
• Take into consideration, but not be based primarily on,
the time the teacher has been teaching in the academic subject; and
• Be made available to the public upon request.
The ESEA also permits States, when developing their HOUSSE
procedures, to involve multiple, objective measures of teacher
competency. Each evaluation should have a high, objective, uniform
standard that the candidate is expected to meet or to exceed. These
standards for evaluation must be applied to each candidate in the same
way.
We believe it is appropriate and consistent with the Act to permit
States to develop a separate HOUSSE for special education teachers to
demonstrate subject matter competency and to use a single HOUSSE
covering multiple subjects, provided that any adaptations to the HOUSSE
do not establish a lower standard for the content knowledge
requirements for special education teachers and meet all the
requirements for a HOUSSE for regular education teachers established in
section 9101(23)(C)(ii) of the ESEA.
Changes: We have added a new paragraph (e) to Sec. 300.18 to allow
States to develop a separate HOUSSE for
[[Page 46560]]
special education teachers and to permit the use of a single HOUSSE
covering multiple subjects. Subsequent paragraphs have been renumbered.
Comment: A few commenters stated that the HOUSSE should only be
used to address the content requirements, not primary certification as
a special educator.
Discussion: A HOUSSE is a method by which teachers can demonstrate
competency in each subject they teach. A HOUSSE does not address the
requirement for full State certification as a special education
teacher.
Changes: None.
Comment: Several commenters recommended clarifying the requirements
for a HOUSSE, particularly at the high school level. One commenter
recommended clarifying the use of a separate HOUSSE for teachers of
children with visual impairments.
Discussion: The requirements for a HOUSSE apply to public school
elementary, middle, and high school special education teachers. Neither
the Act nor the ESEA provides for different HOUSSE procedures at the
high school level. Similarly, there are no requirements for separate
HOUSSE procedures for teachers who teach children with visual
impairments or any other specific type of disability. We do not believe
it is necessary or appropriate to establish separate requirements for
separate HOUSSE procedures for teachers who teach children with visual
impairments or any other specific type of disability. All children with
disabilities, regardless of their specific disability, should have
teachers with the subject matter knowledge to assist them to achieve to
high academic standards.
Changes: None.
Comment: One commenter recommended that States work collaboratively
to ensure there is State reciprocity of content area standards for
special education teachers, including HOUSSE provisions.
Discussion: It is up to each State to determine when and on what
basis to accept another State's determination that a particular teacher
is highly qualified. Additionally, each State determines whether to
consider a teacher from another State to be both fully certified and
competent in each subject area.
Changes: None.
Comment: One commenter requested specific guidance on how to design
a multi-subject HOUSSE for special education teachers.
Discussion: The Department's non-regulatory guidance on Improving
Teacher Quality State Grants issued on August 3, 2005 (available at
http://www.ed.gov/programs/teacherqual/guidance.doc.) provides the
following guidance to States when developing their HOUSSE procedures
(see question A-10):
• Do the HOUSSE procedures provide an ``objective'' way of
determining whether teachers have adequate subject-matter knowledge in
each core academic subject they teach?
• Is there a strong and compelling rationale for each part
of the HOUSSE procedures?
• Do the procedures take into account, but not primarily
rely on, previous teaching experience?
• Does the plan provide solid evidence that teachers have
mastered the subject-matter content of each of the core academic
subjects they are teaching? (Note: experience and association with
content-focused groups or organizations do not necessarily translate
into an objective measure of content knowledge.)
• Has the State consulted with core content specialists,
teachers, principals, and school administrators?
• Does the State plan to widely distribute its HOUSSE
procedures, and are they presented in a format understandable to all
teachers?
Changes: None.
Comment: A few commenters asked whether the additional time allowed
for teachers living in rural areas who teach multiple subjects applies
to special education teachers. One commenter requested that teachers in
rural areas have three extra years after the date of employment to meet
the standards. Another commenter stated it will be difficult for these
teachers to meet the highly qualified special education teacher
requirements even with an extended deadline.
Discussion: The Department's policy on flexibility for middle and
high school teachers in rural schools applies to special education
teachers. Under this policy, announced on March 15, 2004, States may
permit LEAs eligible to participate in the Small Rural School
Achievement (SRSA) program that employ teachers who teach multiple
subjects and are highly qualified in at least one core academic
subject, to have until the end of the 2006-07 school year for these
teachers to be highly qualified in each subject that they teach. Newly-
hired teachers in these covered LEAs have three years from the date of
hire to become highly qualified in each core academic subject that they
teach. More information about this policy is available in the
Department's nonregulatory guidance, Improving Teacher Quality State
Grants (August 3, 2005), which can be found on the Department's Web
site at:
http://www.ed.gov/programs/teacherqual/guidance.doc.
Changes: None.
Comment: Some commenters requested a definition of ``new'' special
education teacher and asked whether it applies to teachers hired after
the date of enactment of the Act, December 3, 2004, or after the 2005-
06 school year. One commenter asked whether a fully certified regular
education teacher who enrolls in a special education teacher training
program would be considered ``new'' to the profession when he or she
completes the training program.
Discussion: Under the Act, mere completion of a special education
teacher training program is not a sufficient predicate for being
considered a highly qualified special education teacher. Section
602(10)(B) of the Act requires full State certification or licensure as
a special education teacher, and this would apply to teachers who are
already certified or licensed as a regular education teacher, as well
as to other individuals.
On the question of when a person is ``new to the profession,'' the
Department's non-regulatory guidance on Improving Teacher Quality State
Grants issued on August 3, 2005, clarifies that States have the
authority to define which teachers are new and not new to the
profession; however, those definitions must be reasonable. The guidance
further states that the Department strongly believes that a teacher
with less than one year of teaching experience is ``new'' to the
profession (see Question A-6). (The guidance is available at
http://www.ed.gov/programs/teacherqual/guidance.doc
). This guidance is
applicable to determinations of when a person is new or not new to the
profession under section 602(10)(C) and (D)(ii) of the Act and Sec.
300.18(c) and (d)(2).
Under section 602(10)(D)(iii) of the Act, and reflected in Sec.
300.18(d)(3), there is additional flexibility for ``a new special
education teacher'' who is teaching multiple subjects and is highly
qualified in mathematics, language arts, or science, to demonstrate
competence in the other core academic subjects in which the teacher
teaches in the same manner as is required for an elementary, middle, or
secondary school teacher who is not new to the profession, which may
include a single, high objective uniform State standard of evaluation
covering multiple subjects, not later than 2 years after the date of
employment. The phrase ``2 years after the date of employment'' in
section
[[Page 46561]]
602(10)(D)(iii) of the Act is interpreted to mean 2 years after
employment as a special education teacher.
For purposes of this provision, we consider it appropriate to
consider a fully certified regular education teacher who subsequently
becomes fully certified or licensed as a special education teacher to
be considered a ``new special education teacher'' when they are first
hired as a special education teacher. We will add language to new Sec.
300.18(g) (proposed Sec. 300.18(f)) to make this clear.
Changes: We have restructured Sec. 300.18(g) (proposed Sec.
300.18(f)) and added a new paragraph (g)(2) to permit a fully certified
regular education teacher who subsequently becomes fully certified or
licensed as a special education teacher to be considered a new special
education teacher when first hired as a special education teacher.
Comment: Some commenters recommended that the regulations clarify
how co-teaching fits with the highly qualified special education
teacher requirements. A few commenters stated that a special education
teacher should be considered a highly qualified teacher if co-teaching
with a highly qualified general education teacher. One commenter stated
that co-teaching will encourage districts to work toward more inclusive
settings for children with disabilities while also ensuring that
teachers with appropriate qualifications are in the classroom. One
commenter supported co-teaching as a method for special education
teachers to learn core content knowledge and be supported by the
general education teacher. One teacher recommended that a highly
qualified general education teacher supervise teachers who do not meet
the highly qualified special education teacher requirements.
Discussion: The term ``co-teaching'' has many different meanings
depending on the context in which it is used. Whether and how co-
teaching is implemented is a matter that is best left to State and
local officials' discretion. Therefore, we decline to include language
regarding co-teaching in these regulations. Regardless of whether co-
teaching models are used, States and LEAs must ensure that teachers
meet the highly qualified teacher requirements in 34 CFR 200.56 and
section 9101(23) of the ESEA and the highly qualified special education
teacher requirements in Sec. 300.18 and section 602(10) of the Act, as
well as the personnel requirements in Sec. 300.156 and section
612(a)(14) of the Act.
Changes: None.
Comment: One commenter recommended requiring schools to post the
credentials of educational personnel in a place with public access, and
to include in the procedural safeguards notice a parent's right to
request the credentials of any teacher who supports the child in an
educational environment. Another commenter stated that parents should
have access to records documenting the type of supervision that is
being provided when a teacher or other service provider is under the
supervision of a highly qualified teacher. One commenter stated that
the ESEA requires districts to provide parents with information about
the personnel qualifications of their child's classroom teachers and
asked whether this requirement applies to special education teachers.
Discussion: There is nothing in the Act that authorizes the
Department to require schools to publicly post the credentials of
educational personnel or to provide parents with information about the
qualification of their child's teachers and other service providers.
Section 615 of the Act describes the guaranteed procedural safeguards
afforded to children with disabilities and their parents under the Act
but does not address whether parents can request information about the
qualifications of teachers and other service providers.
However, section 1111(h)(6) of the ESEA requires LEAs to inform
parents about the quality of a school's teachers in title I schools.
The ESEA requires that at the beginning of each school year, an LEA
that accepts title I, part A funding must notify parents of children in
title I schools that they can request information regarding their
child's classroom teachers, including, at a minimum: (1) Whether the
teacher has met the State requirements for licensure and certification
for the grade levels and subject matters in which the teacher provides
instruction; (2) whether the teacher is teaching under emergency or
other provisional status through which State qualification or licensing
criteria have been waived; (3) the college major and any other graduate
certification or degree held by the teacher, and the field of
discipline of the certification or degree; and (4) whether the child is
provided services by paraprofessionals, and if so, their
qualifications. In addition, each title I school must provide parents
with timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks by, a teacher who is not
highly qualified. These requirements apply only to those special
education teachers who teach core academic subjects in title I schools.
Changes: None.
Rule of Construction (New Sec. 300.18(f)) (Proposed Sec. 300.18(e))
Comment: A number of commenters stated that the rule of
construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)) and
Sec. 300.156(e) should use the same language. One commenter stated
that in order to prevent confusion, the right of action limitations
regarding highly qualified teachers in new Sec. 300.18(f) (proposed
Sec. 300.18(e)) and personnel qualifications in Sec. 300.156(e)
should use consistent language regarding individual and class actions,
and clearly underscore that the limitations are applicable to both
administrative and judicial actions. One commenter recommended
reiterating the language from section 612(a)(14)(D) of the Act that
nothing prevents a parent from filing a State complaint about staff
qualifications. Another commenter expressed concern because new Sec.
300.18(f) (proposed Sec. 300.18(e)) and Sec. 300.156(e) may be
construed to prevent due process hearings when an LEA or SEA fails to
provide a highly qualified teacher.
Discussion: We agree that the rule of construction in new Sec.
300.18(f) (proposed Sec. 300.18(e)) and Sec. 300.156(e) should be the
same. We will change the regulations to clarify that a parent or
student may not file a due process complaint on behalf of a student, or
file a judicial action on behalf of a class of students for the failure
of a particular SEA or LEA employee to be highly qualified; however, a
parent may file a complaint about staff qualifications with the SEA. In
addition to permitting a parent to file a complaint with the SEA, an
organization or an individual may also file a complaint about staff
qualifications with the SEA, consistent with the State complaint
procedures in Sec. Sec. 300.151 through 300.153.
Changes: We have added ``or to prevent a parent from filing a
complaint about staff qualifications with the SEA as provided for under
this part'' in new Sec. 300.18(f) (proposed Sec. 300.18(e)).
Comment: Several commenters recommended that the regulations
specify that the failure of an SEA or LEA to provide a child with a
disability a highly qualified teacher can be a consideration in the
determination of whether a child received FAPE, if the child is not
learning the core content standards or not meeting IEP goals. However,
a few commenters recommended that the regulations clarify that it is
not a denial of FAPE if a special education teacher is not highly
qualified.
[[Page 46562]]
Discussion: If the only reason a parent believes their child was
denied FAPE is that the child did not have a highly qualified teacher,
the parent would have no right of action under the Act on that basis.
The rules of construction in new Sec. 300.18(f) (proposed Sec.
300.18(e)) and Sec. 300.156(e) do not allow a parent or student to
file a due process complaint for failure of an LEA or SEA to provide a
highly qualified teacher.
Changes: None.
Comment: One commenter expressed concern with the rule of
construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)) because
there are no requirements to develop a specific enforcement system to
ensure that teachers meet the highly qualified standard. A few
commenters recommended changing the rule of construction so that States
meet their supervisory responsibilities under the Act if LEAs in the
State are sanctioned under the ESEA for not having highly qualified
teachers.
Some commenters recommended clarifying that when the SEA or LEA
employs an individual who is not highly qualified, States meet their
responsibilities for general supervision under the Act through the
notice and other sanction procedures identified under the ESEA.
One commenter stated that the regulations are silent with regard to
SEA actions when meeting the general supervision requirements under the
Act, and noted that unless the regulations are expanded to clarify that
SEA enforcement procedures under compliance monitoring are limited to
ESEA enforcement procedures, the highly qualified teacher requirements
of an individual teacher may inappropriately become the target for a
finding of noncompliance. This commenter further stated that the ESEA
contains specific procedures for failure of a district to comply with
the highly qualified teacher provisions, and if the SEA also exercises
sanctioning authority under the Act, schools could be punished twice
under two separate provisions of Federal law for the same infraction.
The commenter recommended that to avoid double jeopardy the regulations
should clarify that the ESEA enforcement procedures for a district's
failure to hire a highly qualified teacher follow the provisions of the
ESEA, not the Act.
Discussion: The implementation and enforcement of the highly
qualified teacher standards under the ESEA and the Act complement each
other. The Office of Elementary and Secondary Education (OESE)
currently monitors the implementation of the highly qualified teacher
standards for teachers of core academic subjects under the ESEA. This
includes special education teachers who teach core academic subjects.
The Office of Special Education programs (OSEP) collects data about
special education personnel qualifications and requires that SEAs
establish and maintain qualifications to ensure that personnel
essential to carrying out the purposes of Part B of the Act are
appropriately and adequately prepared and trained. Those personnel must
also have the content knowledge and skills to serve children with
disabilities, consistent with Sec. 300.156.
OESE and OSEP will share their data to ensure that the highly
qualified teacher requirements under the ESEA and the Act are met. This
sharing of information will also prevent schools from being punished
twice for the same infraction.
Changes: None.
Teachers Hired by Private Elementary and Secondary Schools (New Sec.
300.18(h)) (Proposed Sec. 300.18(g))
Comment: Some commenters agreed with new Sec. 300.18(h) (proposed
Sec. 300.18(g)), which states that the highly qualified special
education teacher requirements do not apply to teachers hired by
private elementary schools and secondary schools. However, many
commenters disagreed, stating that children placed by an LEA in a
private school are entitled to receive the same high quality
instruction as special education children in public schools. A few
commenters stated that LEAs will place children in private schools to
avoid hiring highly qualified teachers. Some commenters stated that
public funds should not be used for any school that is not held to the
same high standards as public schools. Other commenters stated that
children with the most significant disabilities who are placed in
private schools are children with the most need for highly qualified
teachers. A few commenters stated that this provision is contrary to
the intent of the ESEA and the Act to support the educational
achievement of children with disabilities. Other commenters stated that
if instruction by a highly qualified teacher is a hallmark of FAPE, it
should be an element of FAPE in any educational setting in which the
child is enrolled by a public agency.
A few commenters recommended that States have the discretion to
determine whether and to what extent the highly qualified teacher
requirements apply to teachers who teach publicly-placed and
parentally-placed children with disabilities. The commenters stated
that the SEA is in the best position to weigh the needs of private
school children for highly qualified teachers and to assess what effect
these requirements would have on the shortage of special education
teachers in the State. One commenter asked whether the highly qualified
teacher requirements apply to providers in private residential
treatment centers where children with disabilities are placed to
receive FAPE.
Discussion: New Sec. 300.18(h) (proposed Sec. 300.18(g))
accurately reflects the Department's position that the highly qualified
special education teacher requirements do not apply to teachers hired
by private elementary schools and secondary schools. This includes
teachers hired by private elementary schools and secondary schools who
teach children with disabilities. Consistent with this position and in
light of comments received regarding the requirements for private
school teachers providing equitable services for parentally-placed
private school children with disabilities under Sec. 300.138, we will
add language to new Sec. 300.18(h) (proposed Sec. 300.18(g)) to
clarify that the highly qualified special education teacher
requirements also do not apply to private school teachers who provide
equitable services to parentally-placed private school children with
disabilities under Sec. 300.138.
Changes: We have added language in new Sec. 300.18(h) (proposed
Sec. 300.18(g)) to clarify that the highly qualified special education
teacher requirements also do not apply to private school teachers who
provide equitable services to parentally-placed private school children
with disabilities under Sec. 300.138.
Homeless Children (Sec. 300.19)
Comment: Several commenters requested adding the definition of
homeless children in the regulations so that it is readily accessible
to parents, advocates, and educators.
Discussion: The term homeless children is defined in the McKinney-
Vento Homeless Assistance Act. For the reasons set forth earlier in
this notice, we are not adding the definitions of other statutes to
these regulations. However, we will include the current definition of
homeless children in section 725 (42 U.S.C. 11434a) of the McKinney-
Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.
(McKinney-Vento Act) here for reference.
The term homeless children and youths--
(A) means individuals who lack a fixed, regular, and adequate
nighttime
[[Page 46563]]
residence (within the meaning of section 103(a)(1)); and
(B) includes--
(i) children and youths who are sharing the housing of other
persons due to loss of housing, economic hardship, or a similar reason;
are living in motels, hotels, trailer parks, or camping grounds due to
the lack of alternative adequate accommodations; are living in
emergency or transitional shelters; are abandoned in hospitals; or are
awaiting foster care placement;
(ii) children and youths who have a primary nighttime residence
that is a public or private place not designed for or ordinarily used
as a regular sleeping accommodation for human beings (within the
meaning of section 103(a)(2)(C));
(iii) children and youths who are living in cars, parks, public
spaces, abandoned buildings, substandard housing, bus or train
stations, or similar settings; and
(iv) migratory children (as such term is defined in section 1309 of
the Elementary and Secondary Education Act of 1965) who qualify as
homeless for the purposes of this subtitle because the children are
living in circumstances described in clauses (i) through (iii).
Changes: None.
Comment: One commenter stated that regulations are needed to
address school selection and enrollment provisions under the McKinney-
Vento Act. Another commenter recommended that the regulations include
the McKinney-Vento Act's requirement that school stability for homeless
children be maintained during periods of residential mobility and that
homeless children enrolled in new schools have the ability to
immediately attend classes and participate in school activities.
Discussion: We appreciate the commenters' concerns, but do not
believe it is necessary to duplicate the requirements of the McKinney-
Vento Act in these regulations. We believe that these issues, as well
as other issues regarding children with disabilities who are homeless,
would be more appropriately addressed in non-regulatory guidance, in
which more detailed information and guidance can be provided on how to
implement the requirements of the Act and the McKinney-Vento Act to
best meet the needs of homeless children with disabilities. We will
work with the Office of Elementary and Secondary Education to provide
guidance and disseminate information to special education teachers and
administrators regarding their responsibilities for serving children
with disabilities who are homeless.
Changes: None.
Indian and Indian Tribe (Sec. 300.21)
Comment: One commenter expressed support for combining and moving
the definition of Indian and Indian tribe from current Sec. 300.264 to
the definitions section of these regulations because the term is
applicable in instances not related to BIA schools. However, another
commenter stated that the definition was unnecessary because the
purpose of the Act is to ensure that every child has FAPE.
Discussion: The definitions of Indian and Indian tribe are included
in sections 602(12) and (13) of the Act, respectively, and are,
therefore, included in subpart A of these regulations. Subpart A
includes definitions for those terms and phrases about which we are
frequently asked and which we believe will assist SEAs and LEAs in
implementing the requirements of the Act. Including the definitions of
Indian and Indian tribe in the definitions section does not in any way
affect the provision of FAPE to all eligible children under the Act.
Changes: None.
Comment: One commenter requested omitting ``State Indian tribes''
that are not also federally-recognized tribes from the definition of
Indian and Indian tribe stating that Federal recognition of an Indian
tribe should be a predicate for the tribe's eligibility for Federal
programs and services. One commenter expressed concern that including
``State Indian tribes'' in the definition could imply that the
Secretary of the Interior is responsible for providing special
education and related services or funding to all State Indian tribes.
Discussion: Section 602(13) of the Act and Sec. 300.21(b) define
Indian tribe as ``any Federal or State Indian tribe'' and do not
exclude State Indian tribes that are not federally-recognized tribes.
We will add a new paragraph (c) to Sec. 300.21 clarifying that the
definition of Indian and Indian tribe is not intended to indicate that
the Secretary of Interior is required to provide services or funding to
a State Indian tribe that is not listed in the Federal Register list of
Indian entities recognized as eligible to receive services from the
United States, published pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
Changes: A new paragraph (c) has been added to Sec. 300.21 to
provide this clarification.
Comment: One commenter stated that it was unclear how many States
have defined Indian tribes that are not defined by the Federal
government and asked what the effect would be on the provision of
services by including State Indian tribes in the definition. Another
commenter stated that including State Indian tribes in the definition
of Indian and Indian tribe implies that children of State-recognized
tribes are considered differently than other children.
Discussion: As noted in the discussion responding to the previous
comment, the list of Indian entities recognized as eligible to receive
services from the United States is published in the Federal Register,
pursuant to Section 104 of the Federally Recognized Indian Tribe List
Act of 1994, 25 U.S.C. 479a-1. The Federal government does not maintain
a list of other State Indian tribes. Including State Indian tribes that
are not federally recognized in the definition does not affect who is
responsible under the Act for the provision of services to children
with disabilities who are members of State Indian tribes. Under section
611(h)(1) of the Act, the Secretary of the Interior is responsible for
providing special education and related services to children age 5
through 21 with disabilities on reservations who are enrolled in
elementary schools and secondary schools for Indian children operated
or funded by the Secretary of the Interior. With respect to all other
children aged 3 through 21 on reservations, the SEA of the State in
which the reservation is located is responsible for ensuring that all
the requirements of Part B of the Act are implemented.
Changes: None.
Individualized Family Service Plan (Sec. 300.24)
Comment: A few commenters recommended including the entire
definition of individualized family service plan in the regulations so
that parents and school personnel do not have to shift back and forth
between documents.
Discussion: Adding the entire definition of individualized family
service plan in section 636 of the Act, which includes information
related to assessment and program development; periodic review;
promptness after assessment; content of the plan; and parental consent,
would unnecessarily add to the length of the regulations. However, the
required content of the IFSP in section 636(d) of the Act is added here
for reference.
The individualized family service plan shall be in writing and
contain--
(1) A statement of the infant's or toddler's present levels of
physical development, cognitive development, communication development,
social or emotional development, and adaptive
[[Page 46564]]
development, based on objective criteria;
(2) a statement of the family's resources, priorities, and concerns
relating to enhancing the development of the family's infant or toddler
with a disability;
(3) a statement of the measurable results or outcomes expected to
be achieved for the infant or toddler and the family, including pre-
literacy and language skills, as developmentally appropriate for the
child, and the criteria, procedures, and timelines used to determine
the degree to which progress toward achieving the results or outcomes
is being made and whether modifications or revisions of the results or
outcomes or services are necessary;
(4) a statement of specific early intervention services based on
peer-reviewed research, to the extent practicable, necessary to meet
the unique needs of the infant or toddler and the family, including the
frequency, intensity, and method of delivering services;
(5) a statement of the natural environments in which early
intervention services will appropriately be provided, including a
justification of the extent, if any, to which the services will not be
provided in a natural environment;
(6) the projected dates for initiation of services and the
anticipated length, duration, and frequency of the services;
(7) the identification of the service coordinator from the
profession most immediately relevant to the infant's or toddler's or
family's needs (or who is otherwise qualified to carry out all
applicable responsibilities under this part) who will be responsible
for the implementation of the plan and coordination with other agencies
and persons, including transition services; and
(8) the steps to be taken to support the transition of the toddler
with a disability to preschool or other appropriate services.
Changes: None.
Infant or Toddler With a Disability (Sec. 300.25)
Comment: A few commenters recommended including the entire
definition of infant or toddler with a disability in the regulations so
that parents and school personnel do not have to shift back and forth
between documents.
Discussion: We agree with the commenters and, therefore, will
include the definition of infant or toddler with a disability from
section 632(5) of the Act in these regulations for reference.
Changes: Section 300.25 has been revised to include the entire
definition of infant or toddler with a disability from section 632(5)
of the Act.
Institution of Higher Education (Sec. 300.26)
Comment: One commenter recommended including the definition of
institution of higher education in these regulations.
Discussion: The term institution of higher education is defined in
section 101 of the Higher Education Act of 1965, as amended, 20 U.S.C.
1021 et seq. (HEA). For the reasons set forth earlier in this notice,
we are not adding definitions from other statutes to these regulations.
However, we are including the current definition here for reference.
(a) Institution of higher education--For purposes of this Act,
other than title IV, the term institution of higher education means an
educational institution in any State that--
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of
education beyond secondary education;
(3) provides an educational program for which the institution
awards a bachelor's degree or provides not less than a 2-year program
that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or
association, or if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary for the granting of
preaccreditation status, and the Secretary has determined that there is
satisfactory assurance that the institution will meet the accreditation
standards of such an agency or association within a reasonable time.
(b) Additional Institutions Included--For purposes of this Act,
other than title IV, the term institution of higher education also
includes--
(1) Any school that provides not less than a 1-year program of
training to prepare students for gainful employment in a recognized
occupation and that meets the provision of paragraphs (1), (2), (4),
and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any
State that, in lieu of the requirement in subsection (a)(1), admits as
regular students persons who are beyond the age of compulsory school
attendance in the State in which the institution is located.
Changes: None.
Comment: One commenter requested that we add language to the
regulations that would allow Haskell and Sipi, postsecondary programs
under the Haskell Indian Nations University and Southwestern Indian
Polytechnic Institute Administrative Act of 1988, 25 U.S.C. 3731 et
seq., to be included in the definition of institution of higher
education.
Discussion: The Haskell and Sipi postsecondary programs under the
Haskell Indian Nations University and Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25 U.S.C. 3731 et seq. meet the
statutory definition of institution of higher education in section
602(17) of the Act because they meet the definition of the term in
section 101 of the HEA. The Act does not include specific institutions
in the definition of institution of higher education, nor do we believe
it is necessary to add specific institutions to the definition in Sec.
300.26.
Changes: None.
Limited English Proficient (Sec. 300.27)
Comment: One commenter requested specific information about
bilingual qualified personnel and qualified interpreters. Some
commenters recommended including the definition of ``limited English
proficient'' in the regulations.
Discussion: Each State is responsible for determining the
qualifications of bilingual personnel and interpreters for children
with limited English proficiency.
The term limited English proficient is defined in the ESEA. For the
reasons set forth earlier in this notice, we are not adding the
definitions from other statutes to these regulations. However, we will
include the current definition in section 9101(25) of the ESEA here for
reference.
The term limited English proficient when used with respect to an
individual, means an individual--
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to enroll in an elementary school
or secondary school;
(C)(i) who was not born in the United States or whose native
language is a language other than English;
(ii)(I) who is a Native American or Alaska Native, or a native
resident of the outlying areas; and
(II) who comes from an environment where a language other than
English has had a significant impact on the individual's level of
English language proficiency; or
[[Page 46565]]
(iii) who is migratory, whose native language is a language other
than English, and who comes from an environment where a language other
than English is dominant; and
(D) whose difficulties in speaking, reading, writing, or
understanding the English language may be sufficient to deny the
individual--
(i) the ability to meet the State's proficient level of achievement
on State assessments described in section 1111(b)(3);
(ii) the ability to successfully achieve in classrooms where the
language of instruction is English; or
(iii) the opportunity to participate fully in society.
Changes: None.
Local Educational Agency (Sec. 300.28)
Comment: One commenter suggested revising Sec. 300.28 to ensure
that all responsibilities and rights attributed to an LEA apply to an
ESA.
Discussion: We believe that the provisions in Sec. 300.12 and
Sec. 300.28 are clear that ESAs have full responsibilities and rights
as LEAs. We, therefore, decline to revise Sec. 300.28.
Changes: None.
Comment: None.
Discussion: Through its review of charter schools' access to
Federal funding, it has come to the Department's attention that
additional guidance is needed regarding whether charter schools that
are established as their own LEAs must be nonprofit entities in order
to meet the definition of LEA in Sec. 300.28. The definition of LEA in
Sec. 300.28(b)(2) specifically includes a public charter school that
is established as an LEA under State law and that exercises
administrative control or direction of, or performs a service function
for, itself. For purposes of the Act, the definitions of charter
school, elementary school, and secondary school in Sec. Sec. 300.7,
300.13, and 300.36, respectively, require that a public elementary or
secondary charter school be a nonprofit entity. Therefore, a public
elementary or secondary charter school established as its own LEA under
State law, also must be a nonprofit entity. Although these regulations
do not specifically define nonprofit, the definition in 34 CFR Sec.
77.1 applies to these regulations. In order to eliminate any confusion
on this issue, we will revise the definition of LEA to reflect that a
public elementary or secondary charter school that is established as
its own LEA under State law must be a nonprofit entity.
Changes: For clarity, we have revised Sec. 300.28(b)(2) by
inserting the term ``nonprofit'' before ``charter school that is
established as an LEA under State law.''
Comment: One commenter stated that Sec. 300.28(c) is in error from
a technical drafting perspective because it does not follow the
statutory language in section 602(19)(C) of the Act. The commenter also
suggested adding a definition of ``BIA funded school,'' rather than
adding a new definition of LEA related to BIA funded schools.
Discussion: We agree that Sec. 300.28(c) does not accurately
reflect the statutory language in section 602(19)(C) of the Act and, as
written, could be interpreted as defining BIA funded schools. This was
not our intent. Rather, the intent was to include ``BIA funded
schools'' in the definition of LEA, consistent with section 602(19)(C)
of the Act.
In order to correct the technical drafting error, we will change
Sec. 300.28(c) to accurately reflect section 602(19)(C) of the Act. We
decline to add a definition of ``BIA funded schools.'' The Act does not
define this term and the Department does not believe that it is
necessary to define the term.
Changes: In order to correct a technical drafting error, Sec.
300.28(c) has been revised to be consistent with statutory language.
Native Language (Sec. 300.29)
Comment: A few commenters expressed support for retaining the
definition of native language, stating that it is important to clarify
that sign language is the native language of many children who are
deaf. One commenter stated it is important to clarify that the language
normally used by the child may be different than the language normally
used by the parents. Another commenter stated that the definition of
native language does not adequately cover individuals with unique
language and communication techniques such as deafness or blindness or
children with no written language.
Discussion: The definition of native language was expanded in the
1999 regulations to ensure that the full range of needs of children
with disabilities whose native language is other than English is
appropriately addressed. The definition clarifies that in all direct
contact with the child (including an evaluation of the child), native
language means the language normally used by the child and not that of
the parents, if there is a difference between the two. The definition
also clarifies that for individuals with deafness or blindness, or for
individuals with no written language, the native language is the mode
of communication that is normally used by the individual (such as sign
language, Braille, or oral communication). We believe this language
adequately addresses the commenters' concerns.
Changes: None.
Parent (Sec. 300.30)
Comment: Several commenters objected to the term ``natural parent''
in the definition of parent because ``natural parent'' presumes there
are ``unnatural parents.'' The commenters recommended using ``birth
parent'' or ``biological parent'' throughout the regulations.
Discussion: We understand that many people find the term ``natural
parent'' offensive. We will, therefore, use the term ``biological
parent'' to refer to a non-adoptive parent.
Changes: We have replaced the term ``natural parent'' with
``biological parent'' in the definition of parent and throughout these
regulations.
Comment: A significant number of commenters recommended retaining
the language in current Sec. 300.20(b), which states that a foster
parent can act as a parent if the biological parent's authority to make
educational decisions on the child's behalf have been extinguished
under State law, and the foster parent has an ongoing, long-term
parental relationship with the child; is willing to make the
educational decisions required of parents under the Act; and has no
interest that would conflict with the interest of the child.
A few commenters stated that current Sec. 300.20(b) better
protects children's interests and should not be removed. Another
commenter stated that removing current Sec. 300.20 will have
unintended consequences for the many foster children who move
frequently to new homes because there will be confusion as to who has
parental rights under the Act. A few commenters stated that short-term
foster parents may not have the knowledge of the child or the
willingness to actively participate in the special education process,
which will effectively leave the child without a parent.
One commenter stated that Sec. 300.30 needs to be changed to
protect biological and adoptive parents from arbitrary decisions by
educational officials who lack the legal authority to make educational
decisions for the child and to ensure that when no biological or
adoptive parent is available, a person with a long-term relationship
with, and commitment to, the child has decision-making authority.
Discussion: Congress changed the definition of parent in the Act.
The definition of parent in these regulations reflects the revised
statutory definition of parent in section 602(23) of the Act.
[[Page 46566]]
The Department understands the concerns expressed by the commenters,
but believes that the changes requested would not be consistent with
the intent of the statutory changes. In changing the definition of
parent in the Act, Congress incorporated some of the wording from the
current regulations and did not incorporate in the new definition of
parent, the current foster parent language referenced by the
commenters.
Changes: None.
Comment: One commenter recommended allowing a foster parent who
does not have a long-term relationship to be the parent, if a court,
after notifying all interested parties, determines that it is in the
best interest of the child.
Discussion: Section 300.30(b)(2) clearly states that if a person is
specified in a judicial order or decree to act as the parent for
purposes of Sec. 300.30, that person would be considered the parent
under Part B of the Act.
Changes: None.
Comment: One commenter stated that Sec. 300.30(a)(2) withdraws the
rights of biological parents under the Act without due process of law.
Discussion: We do not agree with the commenter. If more than one
person is attempting to act as a parent, Sec. 300.30(b)(1) provides
that the biological or adoptive parent is presumed to be the parent if
that person is attempting to act as the parent under Sec. 300.30,
unless the biological or adoptive parent does not have legal authority
to make educational decisions for the child, or there is a judicial
order or decree specifying some other person to act as a parent under
Part B of the Act. We do not believe that provisions regarding lack of
legal authority or judicial orders or decrees would apply unless there
has already been a determination, through appropriate legal processes,
that the biological parent should not make educational decisions for
the child or that another person has been ordered to serve as the
parent.
Changes: None.
Comment: One commenter stated that Sec. 300.30(a)(2) is unwieldy
and difficult to implement because it requires extensive fact finding
by the LEA to determine whether any contractual obligations would
prohibit the foster parent from acting as a parent.
Discussion: The statutory language concerning the definition of
parent was changed to permit foster parents to be considered a child's
parent, unless State law prohibits a foster parent from serving as a
parent. The language in the regulations also recognizes that similar
restrictions may exist in State regulations or in contractual
agreements between a State or local entity and a foster parent, and
should be accorded similar deference. We believe it is essential for
LEAs to have knowledge of State laws, regulations, and any contractual
agreements between a State or local entity and a foster parent to
ensure that the requirements in Sec. 300.30(a)(2) are properly
implemented. States and LEAs should develop procedures to make this
information more readily and easily available so that LEAs do not have
to engage in extensive fact finding each time a child with a foster
parent enrolls in a school.
Changes: None.
Comment: One commenter stated that the regulations need to clarify
that guardians ad litem do not meet the definition of a parent except
for wards of the State where consent for the initial evaluation has
been given by an individual appointed by the judge to represent the
child in the educational decisions concerning the child.
Discussion: We agree that guardians with limited appointments that
do not qualify them to act as a parent of the child generally, or do
not authorize them to make educational decisions for the child, should
not be considered to be a parent within the meaning of these
regulations. What is important is the legal authority granted to
individuals appointed by a court, and not the term used to identify
them. Whether a person appointed as a guardian ad litem has the
requisite authority to be considered a parent under this section
depends on State law and the nature of the person's appointment. We
will revise Sec. 300.30(a)(3) to clarify that a guardian must be
authorized to act as the child's parent generally or must be authorized
to make educational decisions for the child in order to fall within the
definition of parent.
Changes: We have added language in Sec. 300.30(a)(3) to clarify
when a guardian can be considered a parent under the Act.
Comment: One commenter requested adding a ``temporary parent''
appointed in accordance with sections 615(b)(2) or 639(a)(5) of the Act
to the definition of parent.
Discussion: There is nothing in the Act that would prevent a
temporary surrogate parent from having all the rights of a parent. Note
89 of the Conf. Rpt., p. 35810, provides that appropriate staff members
of emergency shelters, transitional shelters, independent living
programs, and street outreach programs would not be considered to be
employees of agencies involved in the education or care of
unaccompanied youth (and thus prohibited from serving as a surrogate
parent), provided that such a role is temporary until a surrogate
parent can be appointed who meets the requirements for a surrogate
parent in Sec. 300.519(d). This provision is included in Sec.
300.519(f), regarding surrogate parents. Therefore, we do not believe
it is necessary to add ``temporary parent'' to the definition of parent
in Sec. 300.30.
Changes: None.
Comment: A few commenters stated that the definition of parent is
confusing, especially in light of the definition of ward of the State
in new Sec. 300.45 (proposed Sec. 300.44) and the LEA's obligation to
appoint a surrogate parent. These commenters stated that Sec. 300.30
should cross-reference the definition of ward of the State in new Sec.
300.45 (proposed Sec. 300.44) and state that the appointed surrogate
parent for a child who is a ward of the State is the parent.
Discussion: Section 615(b)(2) of the Act does not require the
automatic appointment of a surrogate parent for every child with a
disability who is a ward of the State. States and LEAs must ensure that
the rights of these children are protected and that a surrogate parent
is appointed, if necessary, as provided in Sec. 300.519(b)(1). If a
child who is a ward of the State already has a person who meets the
definition of parent in Sec. 300.30, and that person is willing and
able to assume the responsibilities of a parent under the Act, a
surrogate parent might not be needed. Accordingly, we do not believe it
is necessary to make the changes suggested by the commenters.
Changes: None.
Comment: One commenter expressed concern that public agencies will
require biological or adoptive parents to affirmatively assert their
rights or to take action in order to be presumed to be the parent. The
commenter requested clarifying in Sec. 300.30(b)(1) that biological or
adoptive parents do not have to take affirmative steps in order for the
presumption to apply.
Discussion: The biological or adoptive parent would be presumed to
be the parent under these regulations, unless a question was raised
about their legal authority. There is nothing in the Act that requires
the biological or adoptive parent to affirmatively assert their rights
to be presumed to be the parent. We continue to believe that Sec.
300.30(b)(1) is clear and, therefore, will not make the changes
requested by the commenters.
Changes: None.
Comment: Some commenters recommended removing ``when attempting to
act as a parent under this
[[Page 46567]]
part'' in Sec. 300.30(b)(1). A few commenters stated that there is no
explanation of what it means for a biological parent to ``attempt to
act as a parent.'' Another commenter stated that the regulations do not
set any guidelines for determining how a public agency decides if a
biological or adoptive parent is attempting to act as a parent.
One commenter stated ``attempting to act'' would require LEAs to
make determinations about a biological parent's decision-making
authority and this should be left up to courts to determine. One
commenter stated that the regulations permit multiple persons to act as
a child's parent and do not adequately set forth a process to determine
who should be identified as the actual parent for decision-making
purposes. The commenter further stated that the regulations do not set
out a procedure or a timeframe by which public agency officials should
determine if a biological parent has retained the right to make
educational decisions for his or her child.
One commenter stated that the definition of parent gives school
districts excessive power; for example a school could appoint a
surrogate parent if the foster parent was excessively demanding. The
commenter further stated that a clearer order of priority and selection
mechanism with judicial oversight needs to be in place so that school
districts cannot ``parent shop'' for the least assertive individual,
and so that relatives, foster parents, social workers, and others
involved with the child will know who has educational decision making
authority.
One commenter questioned whether Sec. 300.30(b) helps identify
parents or confuses situations in which the person to be designated the
parent is in dispute. Another commenter stated that the requirements in
Sec. 300.30(b) place the responsibility of determining who serves as
the parent of a child in foster care directly on the shoulders of
school administrators who are not child welfare experts. The commenter
recommended that a foster parent automatically qualify as a parent when
the rights of the child's biological parents have been extinguished and
the foster parent has a long-term relationship with the child, no
conflict of interest, and is willing to make educational decisions.
Discussion: Section 300.30(b) was added to assist schools and
public agencies in determining the appropriate person to serve as the
parent under Part B of the Act in those difficult situations in which
more than one individual is ``attempting to act as a parent'' and make
educational decisions for a child. It recognizes the priority of the
biological or adoptive parent and the authority of the courts to make
decisions, and does not leave these decisions to school administrators.
The phrase ``attempting to act as a parent'' is generally meant to
refer to situations in which an individual attempts to assume the
responsibilities of a parent under the Act. An individual may ``attempt
to act as a parent'' under the Act in many situations; for example, if
an individual provides consent for an evaluation or reevaluation, or
attends an IEP Team meeting as the child's parent. We do not believe it
is necessary or possible to include in these regulations the numerous
situations in which an individual may ``attempt to act as a parent.''
Section 300.30(b)(1) provides that the biological or adoptive
parent is presumed to be the parent if that person is attempting to act
as the parent under Sec. 300.30, unless the biological or adoptive
parent does not have legal authority to make educational decisions for
the child, or there is a judicial order or decree specifying some other
person to act as a parent under Part B of the Act. Section 300.30(b)(2)
provides that if a person (or persons) is specified in a judicial order
or decree to act as the parent for purposes of Sec. 300.30, that
person would be the parent under Part B of the Act. We do not believe
that it is necessary for these regulations to establish procedures or a
timeline for a public agency to determine whether a biological parent
has retained the right to make educational decisions for a child. Such
procedures and timelines will vary depending on how judicial orders or
decrees are routinely handled in a State or locality, and are best left
to State and local officials to determine.
Changes: None.
Comment: A few commenters recommended modifying Sec. 300.30(b)(2)
to clarify that a court has the discretion to decide who has the right
to make educational decisions for a child. One commenter recommended
clarifying that the judicial decree referred to in Sec. 300.30(b)(2)
relates specifically to divorce situations, rather than situations
involving children who are wards of the State. Another commenter stated
that Sec. 300.30(b)(2) appears to be aimed at situations where the
court has designated a parent, such as in a custody decree, and that it
is not clear what the provision adds.
Discussion: Section 300.30(b)(2) specifically states that if a
judicial decree or order identifies a person or persons to act as the
parent of a child or to make educational decisions on behalf of a
child, then that person would be determined to be the parent. It was
intended to add clarity about who would be designated a parent when
there are competing individuals under Sec. 300.30(a)(1) through (4)
who could be considered a parent for purposes of this part. It is not
necessary to specify or limit this language to provide that the
judicial decree or order applies to specific situations, such as
divorce or custody cases. However, it should not authorize courts to
appoint individuals other than those identified in Sec. 300.30(a)(1)
through (4) to act as parents under this part. Specific authority for
court appointment of individuals to provide consent for initial
evaluations in limited circumstances is in Sec. 300.300(a)(2)(c).
Authority for court appointment of a surrogate parent in certain
situations is in Sec. 300.519(c).
Changes: We have revised Sec. 300.30(b)(2) to limit its
application to individuals identified under Sec. 300.30(a)(1) through
(4) and have deleted the phrase ``except that a public agency that
provides education or care for the child may not act as the parent'' as
unnecessary.
Comment: One commenter recommended allowing foster parents to act
as parents only when the birth parent's rights have been extinguished
or terminated. A few commenters requested that the regulations clarify
the circumstances under which a foster parent can take over educational
decision making. One commenter stated that allowing a foster parent to
act as a parent would disrupt the special education process.
Discussion: Under Sec. 300.30(a)(2), a foster parent can be
considered a parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent. However, in cases where a foster parent and a
biological or adoptive parent attempt to act as the parent, Sec.
300.30(b)(1) clarifies that the biological or adoptive parent is
presumed to be the parent, unless the biological or adoptive parent
does not have legal authority to make educational decisions for the
child. Section 300.30(b)(2) further clarifies that if a person or
persons such as a foster parent or foster parents is specified in a
judicial order or decree to act as the parent for purposes of Sec.
300.30, that person would be the parent under Part B of the Act. We do
not believe that further clarification is necessary.
Changes: None.
Comment: A few commenters recommended that ``extinguished under
State law'' be defined to mean both temporary and permanent termination
[[Page 46568]]
of parental rights to make educational decisions because this would
allow courts to make more timely decisions regarding the role of a
parent and not feel bound to wait for a full termination of parental
rights.
Discussion: The phrase ``extinguished under State law'' is not used
in the Act or these regulations. The phrase was used in the definition
of parent in current Sec. 300.20(b)(1). The comparable provision in
these regulations is in Sec. 300.30(b)(1), which refers to situations
in which the ``biological or adoptive parent does not have legal
authority to make educational decisions for the child.'' We do not
believe that either of these phrases affects the timeliness of decision
making by courts regarding parental rights.
Changes: None.
Comment: Some commenters stated that ``consistent with State law''
should be included in Sec. 300.30(b)(2) in order to honor local laws
already in place to protect these children.
Discussion: We do not believe the change recommended by the
commenters is necessary. Courts issue decrees and orders consistent
with applicable laws.
Changes: None.
Comment: One commenter stated that it would not be wise to
completely exclude an agency involved in the education or care of the
child from serving as a parent because situations in which an LEA acts
as a parent are very rare and only occur under very unusual
circumstances.
Discussion: The exclusion of an agency involved in the education or
care of the child from serving as a parent is consistent with the
statutory prohibition that applies to surrogate parents in sections
615(b)(2) and 639(a)(5) of the Act.
Changes: None.
Comment: One commenter recommended that the regulations clarify the
responsibilities of the LEA when a biological or adoptive parent and a
foster parent attempt to act as the parent. Although the regulations
state that the biological or adoptive parent must be presumed to be the
parent unless the biological or adoptive parent has been divested of
this authority by a court, the commenter stated that the regulations
are not clear as to whether the LEA has the duty to notify the
biological or adoptive parent, accommodate his or her schedule, or
otherwise take steps to facilitate the biological or adoptive parent's
participation.
One commenter recommended clarifying the relative rights of a
biological or adoptive parent and a foster parent when a child is in
foster care and the foster parent is not prohibited by the State from
acting as a parent.
Discussion: Section 300.30(b)(1) states that when more than one
party is qualified under Sec. 300.30(a) to act as the parent, the
biological or adoptive parent is presumed to be the parent (unless a
judicial decree or order identifies a specific person or persons to act
as the parent of a child). The biological or adoptive parent has all
the rights and responsibilities of a parent under the Act, and the LEA
must provide notice to the parent, accommodate his or her schedule when
arranging meetings, and involve the biological or adoptive parent in
the education of the child with a disability. Thus, if a child is in
foster care (and the foster parent is not prohibited by the State from
acting as a parent) and the biological or adoptive parent is attempting
to act as a parent, the biological or adoptive parent is presumed to be
the parent unless the biological or adoptive parent does not have legal
authority to make educational decisions for the child or a judicial
decree or order identifies a specific person or persons to act as the
parent of a child.
Changes: None.
Comment: A few commenters stated that it is unclear when or under
what circumstances a biological or adoptive parent ceases or surrenders
their rights to a foster parent to make educational decisions for a
child. One commenter stated that the regulations should define clearly
the situations when this would occur and the level of proof that must
be shown by the party seeking to make educational decisions on behalf
of a child. The commenter stated that only under the most extreme and
compelling circumstances should a court be able to appoint another
individual to take the place of a biological or adoptive parent.
Discussion: It would be inappropriate and beyond the authority of
the Department to regulate on the termination of parental rights to
make educational decisions. It is the responsibility of a court to
decide whether to appoint another person or persons to act as a parent
of a child or to make educational decisions on behalf of a child.
Changes: None.
Comment: One commenter requested clarifying to whom LEAs must
provide notice, or obtain consent in situations where there are
disputes between biological or adoptive parents (e.g., when parents
separate or divorce).
Discussion: In situations where the parents of a child are
divorced, the parental rights established by the Act apply to both
parents, unless a court order or State law specifies otherwise.
Changes: None.
Comment: A few commenters recommended clarifying in the regulations
that a private agency that contracts with a public agency for the
education or care of the child may not act as a parent.
Discussion: A private agency that contracts with a public agency
for the education or care of the child, in essence, works for the
public agency, and therefore, could not act as a parent under the Act.
We do not believe it is necessary to regulate on this matter.
Changes: None.
Parent Training and Information Center (Sec. 300.31)
Comment: One commenter requested describing a parent training and
information center (PTI) and a community parent resource center (CPRC)
in the regulations, rather than referencing section 671 or 672 of the
Act.
Discussion: We do not believe it is necessary to include these
descriptions in the regulations. Section 671 of the Act describes the
program requirements for a PTI and section 672 of the Act describes the
program requirements for a CPRC. These sections describe the activities
required of PTIs and CPRCs, as well as the application process for
discretionary funding under Part D of the Act, and would unnecessarily
add to the length of the regulations.
Changes: None.
Comment: One commenter stated that, in order for a State or LEA to
be considered for funding under the Act, the regulations should require
partnerships with the PTIs and the CPRCs, as well as input from PTIs
and CPRCs on assessing State and local needs, and developing and
implementing a plan to address State and local needs.
Discussion: We disagree with the commenter. There is nothing in the
Act that requires States or LEAs, as a condition of funding, to obtain
input from PTIs and CPRCs in assessing needs or developing and
implementing a plan to address State or local needs. States and LEAs
are free to do so, but it is not a requirement for funding.
Changes: None.
Public Agency (Sec. 300.33)
Comment: One commenter stated that the term public agency is not in
the Act and noted that no State has created a new type of public
education agency beyond LEAs and SEAs. The commenter stated that
including the definition of public agency in the regulations,
[[Page 46569]]
therefore, raises concerns regarding the responsibility and authority
for future special education services.
Discussion: The definition of public agency refers to all agencies
responsible for various activities under the Act. The terms ``LEA'' or
``SEA'' are used when referring to a subset of public agencies. We
disagree that the definition raises concerns about the responsibility
and authority for future educational services because the term public
agency is used only for those situations in which a particular
regulation does not apply only to SEAs and LEAs.
During our internal review of the NPRM, we found several errors in
the definition of public agency. Our intent was to use the same
language in current Sec. 300.22. We will, therefore, correct these
errors to be consistent with current Sec. 300.22. Additionally, we
will clarify that a charter school must be a nonprofit charter school.
As noted in the discussion regarding Sec. 300.28(b)(2), we clarified
that a charter school established as its own LEA under State law, must
be a nonprofit charter school.
Changes: We have removed the phrase ``otherwise included as'' the
second time it appears, and replaced it with ``a school of an'' in
Sec. 300.33. We have also changed ``LEAs'' to ``LEA'' and ``ESAs'' to
``ESA'' the third time these abbreviations appear in Sec. 300.33.
Related Services (Sec. 300.34)
Related Services, General (Sec. 300.34(a))
Comment: One commenter requested defining related services as
enabling a child with a disability to receive FAPE in the LRE.
Discussion: The definition of related services is consistent with
section 601(26) of the Act, which does not refer to LRE. The Department
believes that revising the regulations as requested would
inappropriately expand the definition in the Act. Furthermore, the
regulations in Sec. 300.114(a)(2)(ii) already prevent placement of a
child outside the regular education environment unless the child cannot
be satisfactorily educated in the regular education environment with
the use of supplementary aids and services. Therefore, we see no need
to make the change suggested by the commenter.
Changes: None.
Comment: We received numerous requests to revise Sec. 300.34 to
add specific services in the definition of related services. A few
commenters recommended including marriage and family therapy. One
commenter recommended adding nutrition therapy and another commenter
recommended adding recreation therapy. A significant number of
commenters recommended adding art, music, and dance therapy. One
commenter recommended adding services to ensure that medical devices,
such as those used for breathing, nutrition, and other bodily
functions, are working properly. One commenter requested adding
programming and training for parents and staff as a related service.
A few commenters requested clarification on whether auditory
training and aural habilitation are related services. One commenter
asked whether hippotherapy should be included as a related service.
Other commenters recommended adding language in the regulations stating
that the list of related services is not exhaustive. A few commenters
asked whether a service is prohibited if it is not listed in the
definition of related services.
Discussion: Section 300.34(a) and section 602(26) of the Act state
that related services include other supportive services that are
required to assist a child with a disability to benefit from special
education. We believe this clearly conveys that the list of services in
Sec. 300.34 is not exhaustive and may include other developmental,
corrective, or supportive services if they are required to assist a
child with a disability to benefit from special education. It would be
impractical to list every service that could be a related service, and
therefore, no additional language will be added to the regulations.
Consistent with Sec. Sec. 300.320 through 300.328, each child's
IEP Team, which includes the child's parent along with school
officials, determines the instruction and services that are needed for
an individual child to receive FAPE. In all cases concerning related
services, the IEP Team's determination about appropriate services must
be reflected in the child's IEP, and those listed services must be
provided in accordance with the IEP at public expense and at no cost to
the parents. Nothing in the Act or in the definition of related
services requires the provision of a related service to a child unless
the child's IEP Team has determined that the related service is
required in order for the child to benefit from special education and
has included that service in the child's IEP.
Changes: None.
Comment: One commenter recommended adding behavior interventions to
the list of related services, stating that while positive behavioral
interventions and supports are often provided by one of the
professionals listed in Sec. 300.34(c), other types of specialists
also often provide them.
Discussion: The list of related services in Sec. 300.34 is
consistent with section 602(26) of the Act and, as noted above, we do
not believe it is necessary to add additional related services to this
list. We agree with the commenter that there may be many professionals
in a school district who are involved in the development of positive
behavioral interventions. Including the development of positive
behavioral interventions in the description of activities under
psychological services (Sec. 300.34(b)(10)) and social work services
in schools (Sec. 300.34(b)(14)) is not intended to imply that school
psychologists and social workers are automatically qualified to perform
these services or to prohibit other qualified personnel from providing
these services, consistent with State requirements.
Changes: None.
Exception; Services That Apply to Children With Cochlear Implants
(Sec. 300.34(b))
Comment: Many commenters opposed the exclusion of surgically
implanted devices from the definition of related services. Many
commenters stated that the Act does not exclude the maintenance or
programming of surgically implanted devices from the definition of
related services, and that the regulations should specifically state
that related services includes the provision of mapping services for a
child with a cochlear implant. A few commenters stated that the issue
of mapping cochlear implants needs to be clarified so that schools and
parents understand who is responsible for providing this service. One
commenter requested that the regulations clearly specify that
optimization of a cochlear implant is a medical service and define
mapping as an audiological service.
Discussion: The term ``mapping'' refers to the optimization of a
cochlear implant and is not included in the definition of related
services. Specifically, ``mapping'' and ``optimization'' refer to
adjusting the electrical stimulation levels provided by the cochlear
implant that is necessary for long-term post-surgical follow-up of a
cochlear implant. Although the cochlear implant must be properly mapped
in order for the child to hear well in school, the mapping does not
have to be done in school or during the school day in order for it to
be effective. The exclusion of mapping from the definition of related
services reflects the language in Senate Report (S. Rpt.) No. 108-185,
p. 8, which states that the Senate committee did not intend that
[[Page 46570]]
mapping a cochlear implant, or even the costs associated with mapping,
such as transportation costs and insurance co-payments, be the
responsibility of a school district. These services and costs are
incidental to a particular course of treatment chosen by the child's
parents to maximize the child's functioning, and are not necessary to
ensure that the child is provided access to education, regardless of
the child's disability, including maintaining health and safety while
in school. We will add language in Sec. 300.34(b) to clarify that
mapping a cochlear implant is an example of device optimization and is
not a related service under the Act.
Changes: We have added ``(e.g., mapping)'' following
``functioning'' in Sec. 300.34(b) to clarify that mapping a surgically
implanted device is not a related service under the Act.
Comment: A significant number of commenters stated that children
with cochlear implants need instruction in listening and language
skills to process spoken language, just as children with hearing loss
who use hearing aids, and requested that the regulations clarify that
excluding the optimization of device functioning from the definition of
related services does not impact a child's access to related services
such as speech and language therapy, assistive listening devices,
appropriate classroom acoustics, auditory training, educational
interpreters, cued speech transliterators, and specialized instruction.
One commenter requested that the regulations explicitly state
whether a public agency is required to provide more speech and language
services or audiology services to a child with a cochlear implant.
Another commenter requested that the regulations clarify that
optimization only refers to access to assistive technology, such as
assistive listening devices (e.g., personal frequency modulation (FM)
systems) and monitoring and troubleshooting of the device function that
is required under proper functioning of hearing aids.
Discussion: Optimization generally refers to the mapping necessary
to make the cochlear implant work properly and involves adjusting the
electrical stimulation levels provided by the cochlear implant. The
exclusion of mapping as a related service is not intended to deny a
child with a disability assistive technology (e.g., FM system); proper
classroom acoustical modifications; educational support services (e.g.,
educational interpreters); or routine checking to determine if the
external component of a surgically implanted device is turned on and
working. Neither does the exclusion of mapping as a related service
preclude a child with a cochlear implant from receiving the related
services (e.g., speech and language services) that are necessary for
the child to benefit from special education services. As the commenters
point out, a child with a cochlear implant may still require related
services, such as speech and language therapy, to process spoken
language just as other children with hearing loss who use hearing aids
may need those services and are entitled to them under the Act if they
are required for the child to benefit from special education. Each
child's IEP Team, which includes the child's parent along with school
officials, determines the related services, and the amount of services,
that are required for the child to benefit from special education. It
is important that the regulations clearly state that a child with a
cochlear implant or other surgically implanted medical device is
entitled to related services that are determined by the child's IEP
Team to be necessary for the child to benefit from special education.
Therefore, we will add language in Sec. 300.34(b) to clarify that a
child with a cochlear implant or other surgically implanted medical
device is entitled to those related services that are required for the
child to benefit from special education, as determined by the child's
IEP Team.
Changes: We have reformatted Sec. 300.34(b) and added a new
paragraph (2) to clarify that a child with a cochlear implant or other
surgically implanted device is entitled to the related services that
are determined by the child's IEP Team to be required for the child to
benefit from special education. We have also added the phrase
``services that apply to children with surgically implanted devices,
including cochlear implants' to the heading in Sec. 300.34(b).
Comment: One commenter expressed concern that excluding the
optimization of device functioning and maintenance of the device as
related services will establish different standards for serving
children with cochlear implants versus children who use hearing aids
and other external amplification devices, and recommended clarifying
that routine monitoring of cochlear implants and other surgically
implanted devices to ensure that they are functioning in a safe and
effective manner is permitted under the Act.
A few commenters stated that some schools are interpreting the
exclusion of device optimization, functioning, and maintenance to mean
that they do not have to help the child change a battery in the
externally worn speech processor connected with the surgically
implanted device, make certain that it is turned on, or help the child
to learn to listen with the cochlear implant. One commenter stated that
children with cochlear implants should have the same services as
children who use a hearing aid when the battery needs changing or
equipment breaks down.
One commenter stated that Sec. 300.34(b) is confusing and should
explicitly state that the exception of the optimization of device
functioning, maintenance of the device, or replacement of the device is
limited to surgically implanted devices. The commenter stated that the
language could erroneously lead to an interpretation that this
exception is applicable to all medical devices. One commenter expressed
concern that this misinterpretation could put insulin pumps and other
medical devices that are required for the health of the child in the
same category as cochlear implants.
A few commenters stated that it is important to clarify that
excluding the optimization of device functioning and the maintenance of
the device should not be construed to exclude medical devices and
services that children need to assist with breathing, nutrition, and
other bodily functions while the child is involved with education and
other school-related activities.
One commenter stated that a school nurse, aide, teacher's aide, or
any other person who is qualified and trained should be allowed to
monitor and maintain, as necessary, a surgically implanted device.
Discussion: A cochlear implant is an electronic device surgically
implanted to stimulate nerve endings in the inner ear (cochlea) in
order to receive and process sound and speech. The device has two
parts, one that is surgically implanted and attached to the skull and,
the second, an externally worn speech processor that attaches to a port
in the implant. The internal device is intended to be permanent.
Optimization or ``mapping'' adjusts or fine tunes the electrical
stimulation levels provided by the cochlear implant and is changed as a
child learns to discriminate signals to a finer degree. Optimization
services are generally provided at a specialized clinic. As we
discussed previously regarding Sec. 300.34, optimization services are
not a covered service under the Act. However, a public agency still has
a role in providing services and supports to help children with
cochlear implants.
Particularly with younger children or children who have recently
obtained implants, teachers and related services personnel frequently
are the first to notice changes in the child's perception
[[Page 46571]]
of sounds that the child may be missing. This may manifest as a lack of
attention or understanding on the part of the child or frustration in
communicating. The changes may indicate a need for remapping, and we
would expect that school personnel would communicate with the child's
parents about these issues. To the extent that adjustments to the
devices are required, a specially trained professional would provide
the remapping, which is not considered the responsibility of the public
agency.
In many ways, there is no substantive difference between serving a
child with a cochlear implant in a school setting and serving a child
with a hearing aid. The externally worn speech processor connected with
the surgically implanted device is similar to a hearing aid in that it
must be turned on and properly functioning in order for the child to
benefit from his or her education. Parents of children with cochlear
implants and parents of children with hearing aids both frequently
bring to school extra batteries, cords, and other parts for the hearing
aids and externally worn speech processors connected with the
surgically-implanted devices, especially for younger children. The
child also may need to be positioned so that he or she can directly see
the teacher at all times, or may need an FM amplification system such
as an audio loop.
For services that are not necessary to provide access to education
by maintaining the health or safety of the child while in school, the
distinguishing factor between those services that are not covered under
the Act, such as mapping, and those that are covered, such as verifying
that a cochlear implant is functioning properly, in large measure, is
the level of expertise required. The maintenance and monitoring of
surgically implanted devices require the expertise of a licensed
physician or an individual with specialized technical expertise beyond
that typically available from school personnel. On the other hand,
trained lay persons or nurses can routinely check an externally worn
processor connected with a surgically implanted device to determine if
the batteries are charged and the external processor is operating. (As
discussed below, the Act does require public agencies to provide those
services that are otherwise related services and are necessary to
maintain a child's health or safety in school even if those services
require specialized training.) Teachers and related services providers
can be taught to first check the externally worn speech processor to
make sure it is turned on, the volume and sensitivity settings are
correct, and the cable is connected, in much the same manner as they
are taught to make sure a hearing aid is properly functioning. To allow
a child to sit in a classroom when the child's hearing aid or cochlear
implant is not functioning is to effectively exclude the child from
receiving an appropriate education. Therefore, we believe it is
important to clarify that a public agency is responsible for the
routine checking of the external components of a surgically implanted
device in much the same manner as a public agency is responsible for
the proper functioning of hearing aids.
The public agency also is responsible for providing services
necessary to maintain the health and safety of a child while the child
is in school, with breathing, nutrition, and other bodily functions
(e.g., nursing services, suctioning a tracheotomy, urinary
catheterization) if these services can be provided by someone who has
been trained to provide the service and are not the type of services
that can only be provided by a licensed physician. (Cedar Rapids
Community School District v. Garret F., 526 U.S. 66 (1999)).
Changes: We have added new Sec. 300.113 to cover the routine
checking of hearing aids and external components of surgically
implanted devices. The requirement for the routine checking of hearing
aids has been removed from proposed Sec. 300.105 and included in new
Sec. 300.113(a). The requirement for routine checking of an external
component of a surgically implanted medical device has been added as
new Sec. 300.113(b). The requirements for assistive technology devices
and services remain in Sec. 300.105 and the heading has been changed
to reflect this change. We have also included a reference to new Sec.
300.113(b) in new Sec. 300.34(b)(2).
Comment: A few commenters stated that specialized cochlear implant
audiologists who are at implant centers or closely associated with them
should program cochlear implants. One commenter stated that, typically,
school audiologists and school personnel do not have the specialized
experience to program cochlear implants.
Discussion: The personnel with the specific expertise or licensure
required for the optimization (e.g., mapping) of surgically implanted
devices are decisions to be made within each State based on applicable
State statutes and licensing requirements. Since mapping is not covered
under the Act, personnel standards for individuals who provide mapping
services are beyond the scope of these regulations.
Changes: None.
Audiology (Sec. 300.34(c)(1))
Comment: One commenter stated that the definition of audiology does
not reflect current audiology practice in schools and recommended new
language to include services for children with auditory-related
disorders, provision of comprehensive audiologic habilitation and
rehabilitation services; consultation and training of teachers and
other school staff; and involvement in classroom acoustics.
Discussion: The definition of audiology is sufficiently broad to
enable audiologists to be involved in the activities described by the
commenter. We do not believe it is necessary to change the definition
to add the specific functions recommended by the commenter.
Changes: None.
Comment: A few commenters requested adding mapping services for a
child with a cochlear implant to the definition of audiology.
Discussion: For the reasons discussed previously in this section,
Sec. 300.34(b) specifically excludes the optimization of a surgically
implanted device from the definition of related services. This includes
mapping of a cochlear implant.
Changes: None.
Comment: One commenter stated that the definition of audiology
appears to be limited to children who are deaf or hard of hearing, and
recommended adding language to allow children without expressive speech
to receive such services.
Discussion: The term audiology, as defined in Sec. 300.34(c)(1),
focuses on identifying and serving children who are deaf or hard of
hearing. It is not necessary to add language in the regulations
regarding children without expressive speech because the determining
factor of whether audiology services are appropriate for a child is
whether the child may be deaf or hard of hearing, not whether a child
has expressive speech.
Changes: None.
Early Identification and Assessment of Disabilities (Sec.
300.34(c)(3))
Comment: Some commenters noted that ``early identification and
assessment of disabilities'' was removed from the list of related
services in Sec. 300.34(a).
Discussion: ``Early identification and assessment of disabilities''
was inadvertently omitted from the list of related services in Sec.
300.34(a).
Changes: ``Early identification and assessment'' will be added to
the list of related services in Sec. 300.34(a).
[[Page 46572]]
Interpreting Services (Sec. 300.34(c)(4))
Comment: One commenter recommended that the definition of
interpreting services requires that such services be provided by a
qualified interpreter who is able to effectively, accurately, and
impartially use any specialized vocabulary, both receptively and
expressively. A few commenters strongly recommended requiring
interpreting services to be provided by qualified interpreters to
ensure equivalent communication access and effective communication
with, and for, children who are deaf or hard of hearing. The commenter
stated that personnel standards for interpreters vary greatly across
SEAs and LEAs, and requiring qualified interpreters would be consistent
with the definition of other related services included in these
regulations such as physical therapy and occupational therapy.
One commenter recommended defining the function of an interpreter
as a person who facilitates communication between children who are deaf
or hard of hearing, staff, and children, regardless of the job title.
Discussion: Section 300.156, consistent with section 612(a)(14) of
the Act, clarifies that it is the responsibility of each State to
establish personnel qualifications to ensure that personnel necessary
to carry out the purposes of the Act are appropriately and adequately
prepared and trained and have the content knowledge and skills to serve
children with disabilities. It is not necessary to add more specific
functions of individuals providing interpreting services, as
recommended by the commenters. States are appropriately given the
flexibility to determine the qualifications and responsibilities of
personnel, based on the needs of children with disabilities in the
State.
Changes: None.
Comment: A few commenters recommended including American sign
language and sign language systems in the definition of interpreting
services.
Discussion: The definition of interpreting services is sufficiently
broad to include American sign language and sign language systems, and
therefore, will not be changed. We believe it is important to include
sign language transliteration (e.g., translation systems such as Signed
Exact English and Contact Signing), in addition to sign language
interpretation of another language (e.g., American sign language) in
the definition of interpreting services, and will add this language to
Sec. 300.34(c)(4)(i).
Changes: We have added language to Sec. 300.34(c)(4)(i) to include
sign language transliteration.
Comment: A few commenters recommended changing the definition of
interpreting services to clarify that the need for interpreting
services must be based on a child's disability and not degree of
English proficiency.
Discussion: The definition of interpreting services clearly states
that interpreting services are used with children who are deaf or hard
of hearing. The nature and type of interpreting services required for
children who are deaf or hard of hearing and also limited in English
proficiency are to be determined by reference to the Department's
regulations and policies regarding students with limited English
proficiency. For example, the Department's regulations in 34 CFR part
100, implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, require that recipients of Federal financial assistance ensure
meaningful access to their programs and activities by students who are
limited English proficient, including those who are deaf or hard of
hearing. The requirement to provide services to students who are
limited English proficient and others is also governed by various
Department policy memoranda including the September 27, 1991
memorandum, ``Department of Education Policy Update on Schools'
Obligations Toward National Origin Minority Students With Limited
English Proficiency''; the December 3, 1985 guidance document, ``The
Office for Civil Rights' Title VI Language Minority Compliance
Procedures''; and the May 1970 memorandum to school districts,
``Identification of discrimination and Denial of Services on the Basis
of National Origin,'' 35 FR 11595. These documents are available at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov. We do not believe additional clarification is
necessary.
Changes: None.
Comment: One commenter stated that the definition of interpreting
services appears to be limited to children who are deaf or hard of
hearing, and recommended adding language to allow children without
expressive speech to receive such services.
Discussion: Interpreting services, as defined in Sec.
300.34(c)(4), clearly states that interpreting services are used with
children who are deaf and hard of hearing. Therefore, a child who is
not deaf or hard of hearing, but who is without expressive speech,
would not be considered eligible to receive interpreting services as
defined in Sec. 300.34(c)(4). However, such a child could be
considered eligible for speech-language pathology services, consistent
with Sec. 300.34(c)(15).
Changes: None.
Comment: Some commenters recommended including communication access
real-time transcription (CART) services in the definition of
interpreting services because these services are being used with
increasing frequency in postsecondary education and employment
settings, and familiarity and experience with CART services may better
prepare children who are deaf or hard of hearing to transition to
higher education and employment environments. A few commenters stated
that the definition of interpreting services appears to limit
interpreting services to the methods listed in Sec. 300.34(c)(4),
which exclude tactile and close vision interpreting for children who
are deaf-blind.
Discussion: Although the definition of interpreting services is
written broadly to include other types of interpreting services, we
believe that it is important to include in the definition services in
which oral communications are transcribed into real-time text.
Therefore, we are adding language to Sec. 300.34(c)(4) to refer to
transcription services and include several examples of transcription
systems used to provide such services.
We also believe that it is important that the definition of
interpreting services include services for children who are deaf-blind.
However, because there are many types of interpreting services for
children who are deaf-blind, in addition to tactile and close vision
interpreting services, we will add a more general statement to include
interpreting services for children who are deaf-blind, rather than
listing all the different methods that might be used for children who
are deaf-blind.
Changes: We have restructured Sec. 300.34(c)(4) and added ``and
transcription services such as communication real-time translation
(CART), C-Print, and TypeWell'' to the definition of interpreting
services in paragraph (c)(4)(i). We have also added a new paragraph
(c)(4)(ii) to include interpreting services for children who are deaf-
blind.
Medical Services (Sec. 300.34(c)(5))
Comment: One commenter stated that the definition of medical
services is not in the Act and recommended that the definition be
broader than the decision in Cedar Rapids Community School Dist. v.
Garrett F., 526 U.S. 66 (1999), which the definition appears to follow.
Discussion: The list of related services in Sec. 300.34(a)
includes medical services
[[Page 46573]]
for diagnostic and evaluation purposes, consistent with section 602(26)
of the Act. The Department continues to believe that using language
from the Act to define medical services is essential. Defining medical
services more broadly, as recommended by the commenter, would not be
consistent with the Act.
Changes: None.
Orientation and Mobility Services (Sec. 300.34(c)(7))
Comment: Several commenters supported including travel training in
the definition of orientation and mobility services and recommended
adding a reference to the definition of travel training in new Sec.
300.39(b)(4) (proposed Sec. 300.38(b)(4)). However, other commenters
stated that travel training should appear as a distinct related service
and should not be included in the definition of orientation and
mobility services because children who are blind and visually impaired
receive this type of instruction from certified orientation and
mobility specialists. One commenter stated that the regulations should
specify that travel training is for children with cognitive or other
disabilities.
Discussion: We believe that including travel training in the
definition of orientation and mobility services may be misinterpreted
to mean that travel training is available only for children who are
blind or visually impaired or that travel training is the same as
orientation and mobility services. We will, therefore, remove travel
training from Sec. 300.34(c)(7). This change, however, does not
diminish the services that are available to children who are blind or
visually impaired.
Travel training is defined in new Sec. 300.39(b)(4) (proposed
Sec. 300.38(b)(4)) for children with significant cognitive
disabilities and any other children with disabilities who require this
instruction, and, therefore, would be available for children who are
blind or visually impaired, as determined by the child's IEP Team.
Travel training is not the same as orientation and mobility services
and is not intended to take the place of appropriate orientation and
mobility services.
Changes: We have removed ``travel training instruction'' from Sec.
300.34(c)(7)(ii) to avoid confusion with the definition of travel
training in new Sec. 300.39(b)(4) (proposed Sec. 300.38(b)(4)), and
to clarify that travel training is not the same as orientation and
mobility services and cannot take the place of appropriate orientation
and mobility services.
Comment: One commenter recommended that the regulations specify who
is qualified to provide travel training instruction and stated that it
is critical that skills such as street crossing be taught correctly.
Discussion: Section 300.156, consistent with section 612(a)(14) of
the Act, requires each State to establish personnel qualifications to
ensure that personnel necessary to carry out the purposes of the Act
are appropriately and adequately prepared and trained and have the
content knowledge and skills to serve children with disabilities. It
is, therefore, the State's responsibility to determine the
qualifications that are necessary to provide travel training
instruction.
Changes: None.
Parent Counseling and Training (Sec. 300.34(c)(8))
Comment: A few commenters stated that the definition of parent
counseling and training in Sec. 300.34(c)(8) is not included in the
definition of related services in section 602(26)(A) of the Act and,
therefore, should not be included in the regulations.
Discussion: Paragraphs (i) and (ii) of Sec. 300.34(c)(8),
regarding assisting parents in understanding the special needs of their
child, and providing parents with information about child development,
respectively, are protected by section 607(b) of the Act, and cannot be
removed. Section 300.34(c)(8)(iii), regarding helping parents acquire
the skills to allow them to support the implementation of their child's
IEP or IFSP, was added in the 1999 regulations to recognize the more
active role of parents as participants in the education of their
children. Although not included in the Act, we believe it is important
to retain this provision in these regulations so that there is no
question that parent counseling and training includes helping parents
acquire skills that will help them support the implementation of their
child's IEP or IFSP.
Changes: None.
Comment: One commenter recommended that the regulations describe
the responsibility of LEAs to provide parent counseling and training.
Discussion: As with other related services, an LEA only is
responsible for providing parent counseling and training if a child's
IEP Team determines that it is necessary for the child to receive FAPE.
To include this language in the definition of parent counseling and
training, moreover, would be unnecessarily duplicative of Sec.
300.17(d), which states that FAPE means special education and related
services that are provided in conformity with an IEP that meets the
requirements in Sec. Sec. 300.320 through 300.324.
Changes: None.
Physical Therapy (Sec. 300.34(c)(9))
Comment: One commenter recommended the definition of physical
therapy include related therapeutic services for children with
degenerative diseases.
Discussion: We do not believe the suggested change is necessary
because the definition of physical therapy is broadly defined and could
include therapeutic services for children with degenerative diseases.
It is the responsibility of the child's IEP Team to determine the
special education and related services that are necessary for a child
to receive FAPE. There is nothing in the Act that prohibits the
provision of therapeutic services for children with degenerative
diseases, if the IEP Team determines they are needed for an individual
child and, thereby, includes the services in the child's IEP.
Changes: None.
Comment: One commenter stated that the definition of physical
therapy in Sec. 300.34(c)(9) is circular and requested that a
functional definition be provided.
Discussion: The definition of physical therapy has been in the
regulations since 1977 and is commonly accepted by SEAs, LEAs, and
other public agencies. We do not believe it is necessary to change the
definition.
Changes: None.
Psychological Services (Sec. 300.34(c)(10))
Comment: One commenter recommended that the definition of
psychological services include strategies to facilitate social-
emotional learning.
Discussion: We do not believe the definition should be revised to
add a specific reference to the strategies recommended by the
commenter. The definition of psychological services is sufficiently
broad to enable psychologists to be involved in strategies to
facilitate social-emotional learning.
Changes: None.
Comment: One commenter stated that unless the definition of
psychological services includes research-based counseling, schools will
argue that they are required to provide counseling services delivered
by social workers because counseling is included in the definition of
social work services in schools.
Discussion: We do not believe including research-based counseling
in the definition of psychological services is necessary. Including
counseling in the definition of social work services in schools in
Sec. 300.34(c)(14) is intended to indicate the types of personnel who
assist in this activity and is not intended
[[Page 46574]]
either to imply that school social workers are automatically qualified
to perform counseling or to prohibit other qualified personnel from
providing counseling, consistent with State requirements.
Changes: None.
Comment: One commenter stated that other related services
personnel, in addition to school psychologists, should be permitted to
develop and deliver positive behavioral intervention strategies.
Discussion: There are many professionals who might also play a role
in developing and delivering positive behavioral intervention
strategies. The standards for personnel who assist in developing and
delivering positive behavioral intervention strategies will vary
depending on the requirements of the State. Including the development
and delivery of positive behavioral intervention strategies in the
definition of psychological services is not intended to imply that
school psychologists are automatically qualified to perform these
duties or to prohibit other qualified personnel from providing these
services, consistent with State requirements.
Changes: None.
Recreation (Sec. 300.34(c)(11))
Comment: A few commenters requested modifying the definition of
recreation to include therapeutic recreation services provided by a
qualified recreational therapist, which include services that restore,
remediate, or rehabilitate to improve functioning and independence, and
reduce or eliminate the effects of illness or disability.
Discussion: We do not believe it is necessary to change the
definition of recreation as recommended by the commenters because the
definition is sufficiently broad to include the services mentioned by
the commenters.
Changes: None.
School Health Services and School Nurse Services (Proposed School Nurse
Services) (Sec. 300.34(c)(13))
Comment: Some commenters noted that while ``school health
services'' is included in the list of related services in Sec.
300.34(a), it is not defined, which will result in confusion about the
relationship between ``school health services'' and ``school nurse
services.''
Some commenters stated that adding the definition of school nurse
services and eliminating the definition of school health services must
not narrow the range of related services available to children. One
commenter recommended that the definition of school nurse services
allow school nurse services to be provided by other qualified persons,
as well as a qualified school nurse, because the majority of schools do
not have a school nurse on staff. One commenter requested that the
regulations clarify that schools can continue to use registered nurses
or other personnel to provide school nurse services, consistent with
State law. Another commenter stated that there is well-established case
law upholding the obligation of an SEA and LEA to provide health-
related services necessary for a child to benefit from special
education.
Discussion: School health services was retained in the definition
of related services in Sec. 300.34(a). However, the definition of
school health services was inadvertently removed in the NPRM. To
correct this error, we will add school health services to the
definition of school nurse services and clarify that school health
services and school nurse services means health services that are
designed to enable a child with a disability to receive FAPE. We will
also add language to clarify that school nurse services are provided by
a qualified school nurse and that school health services are provided
by either a qualified school nurse or other qualified person. We
recognize that most schools do not have a qualified school nurse on a
full-time basis (i.e., a nurse that meets the State standards for a
qualified school nurse), and that many schools rely on other qualified
school personnel to provide school health services under the direction
of a school nurse. Therefore, we believe it is important to retain the
definition of school health services and school nurse services in these
regulations.
With the changes made in Sec. 300.34(c), it is not necessary for
the reference to ``school nurse services'' in Sec. 300.34(a) to
include the phrase, ``designed to enable a child with a disability to
receive a free appropriate public education as described in the IEP of
the child.'' We will, therefore, remove this phrase in Sec. 300.34(a).
Changes: Section 300.34(c)(13) has been revised to include a
definition of school health services and school nurse services.
Additional language has been added to clarify who provides school
health services and school nurse services. We have also modified Sec.
300.34(a) by deleting the redundant phrase, ``designed to enable a
child with a disability to receive a free appropriate public education
as described in the IEP of the child.''
Comment: One commenter stated that adding school nurse services to
the definition of related services makes it more burdensome for the
delivery of services to children who are medically-fragile.
Discussion: It is unclear how adding school nurse services to the
definition of related services affects services to children who are
medically fragile. As defined in Sec. 300.34(c)(13), school health
services and school nurse services are designed to enable a child with
a disability to receive FAPE as described in the child's IEP. A child
who is medically fragile and needs school health services or school
nurse services in order to receive FAPE must be provided such services,
as indicated in the child's IEP.
Changes: None.
Comment: One commenter stated that the definition of school nurse
services should include services that enable a child with a disability
to receive FAPE in the LRE. Another commenter stated that school nurses
can be extremely supportive of children with disabilities receiving
FAPE in the LRE and recommended changing the regulations to ensure that
parents understand that the definition of related services includes
school nurse services.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.120 provide, that to the maximum extent appropriate, children with
disabilities are to be educated with children who are not disabled. It
is not necessary to repeat this requirement in the definition of school
health services and school nurse services.
We agree that school health services and school nurse services are
important related services. Section 300.34(a) and section 602(26)(A) of
the Act are clear that the definition of related services includes
school health services and school nurse services. The IEP Team, of
which the parent is an integral member, is responsible for determining
the services that are necessary for the child to receive FAPE. We,
therefore, do not believe that it is necessary to add a regulation
requiring public agencies to ensure that parents understand that
related services include school health services and school nurse
services.
Changes: None.
Comment: One commenter stated that including the phrase, ``designed
to enable a child with a disability to receive a free appropriate
public education'' in Sec. 300.34(c)(13) in relation to school nurse
services, is unnecessary and confusing.
Discussion: As stated in Sec. 300.34(a), the purpose of related
services is to assist a child with a disability to benefit from special
education. We believe it is necessary to specify that school health
services and school nurse services are related services only to the
extent that
[[Page 46575]]
the services allow a child to benefit from special education and enable
a child with a disability to receive FAPE.
Changes: None.
Social Work Services in Schools (Sec. 300.34(c)(14))
Comment: One commenter recommended including strategies to
facilitate social-emotional learning in the definition of social work
services in schools. A few commenters stated that the role of the
school social worker is evolving and recommended that the definition
include the role of social workers as integral members of pre-referral
teams that deliver interventions to decrease the number of referrals to
special education. One commenter recommended that the definition
include a reference to the social worker's role in addressing the
relevant history and current functioning of an individual within his or
her environmental context, rather than referring to social-
developmental histories. Another commenter stated that social workers
are trained to find resources in the home, school, and community and
recommended including such language in the definition.
Discussion: The definition of social work services in schools is
sufficiently broad to include the services described by the commenters
and we do not believe the definition should be revised to add these
more specific functions.
Changes: None.
Comment: One commenter stated that the definition of social work
services in schools removes language from the 1983 regulations that
states that social work services allow children with disabilities to
maximize benefit from the learning program. The commenter stated that
this is a higher standard than what is required in Sec. 300.34(c)(14),
which only requires that services enable a child to learn as
effectively as possible, and, therefore, the 1983 definition should be
retained, consistent with section 607(b) of the Act.
Discussion: We disagree with the commenter. The definition of
social work services in schools in the 1977 regulations included
``mobilizing school and community resources to enable the child to
receive maximum benefit from his or her educational program.'' As
explained in the preamble to the final 1992 regulations, the phrase
``to receive maximum benefit'' was intended only to provide that the
purpose of activities carried out by personnel qualified to provide
social work services in schools is to mobilize resources so that a
child can learn as effectively as possible in his or her educational
program. The language in the preamble to the final 1992 regulations
also clarified that this provision did not set a legal standard for
that program or entitle the child to a particular educational benefit.
The preamble further explained that, during the public comment period
for the 1992 regulations, commenters raised concerns that the term
``maximum benefit'' appeared to be inconsistent with the decision by
the United States Supreme Court in Board of Education v. Rowley, 458
U.S. 176 (1982). Therefore, the phrase was revised to read ``to learn
as effectively as possible in his or her educational program.'' This is
the same phrase used in the 1999 regulations and in these regulations
in Sec. 300.34(c)(14)(iv). Because the language in the 1977 final
regulations did not entitle a child to any particular benefit, the
change made in 1992 did not lessen protections for a child, and,
therefore, is not subject to section 607(b) of the Act.
Changes: None.
Comment: One commenter recommended adding a reference to
``functional behavioral assessments'' in Sec. 300.34(c)(14)(v) because
functional behavioral assessments should always precede the development
of behavioral intervention strategies. Another commenter expressed
concern that Sec. 300.34(c)(14)(iv), regarding social work services to
mobilize school and community resources to enable the child to learn as
effectively as possible, creates a potential for litigation. The
commenter asked whether a school district could face a due process
hearing for failure to mobilize community resources if there are no
community resources to address the needs of the child or family.
Discussion: The definition of social work services in schools
includes examples of the types of social work services that may be
provided. It is not a prescriptive or exhaustive list. The child's IEP
Team is responsible for determining whether a child needs social work
services, and what specific social work services are needed in order
for the child to receive FAPE. Therefore, while conducting a functional
behavioral assessment typically precedes developing positive behavioral
intervention strategies, we do not believe it is necessary to include
functional behavioral assessments in the definition of social work
services in schools because providing positive behavioral intervention
strategies is just an example of a social work service that might be
provided to a child if the child's IEP Team determines that such
services are needed for the child to receive FAPE. Similarly, if a
child's IEP Team determines that mobilizing community resources would
not be an effective means of enabling the child to learn as effectively
as possible because there are no community resources to address the
needs of the child, the IEP Team would need to consider other ways to
meet the child's needs. While there is the possibility that a due
process hearing might be filed based on a failure to mobilize community
resources that do not exist, we do not believe that such a claim could
ever be successful, as the regulation does not require the creation of
community resources that do not exist.
Changes: None.
Speech-language Pathology Services (Sec. 300.34(c)(15))
Comment: One commenter stated that children who need speech therapy
should have it for a full classroom period, five days a week, and not
be removed from other classes to receive this related service.
Discussion: It would be inconsistent with the Act to dictate the
amount and location of services for all children receiving speech-
language pathology services, as recommended by the commenter. As with
all related services, section 614(d)(1)(A)(i)(IV) of the Act provides
that the child's IEP Team is responsible for determining the services
that are needed for the child to receive FAPE. This includes
determining the type of related service, as well as the amount and
location of services.
Changes: None.
Comment: One commenter stated that the definition of speech-
language pathology services appears to be limited to children who are
deaf or hard of hearing, and recommended adding language to the
regulations to allow children without expressive speech to receive such
services.
Discussion: There is nothing in the Act or the regulations that
would limit speech-language pathology services to children who are deaf
or hard of hearing or to children without expressive speech. The
definition of speech-language pathology services specifically includes
services for children who have language impairments, as well as speech
impairments.
Changes: None.
Comment: One commenter requested the definition of speech-language
pathology services specify the qualifications and standards for speech-
language professionals. Another commenter requested that the definition
require a highly qualified provider to deliver speech-language
services. One commenter requested that the definition require a speech-
language pathologist to provide speech-language services.
[[Page 46576]]
Discussion: Consistent with Sec. 300.156 and section 612(a)(14) of
the Act, it is up to each State to establish personnel qualifications
to ensure that personnel necessary to carry out the purposes of the Act
are appropriately and adequately prepared and trained and have the
content knowledge and skills to serve children with disabilities.
Section 300.156(b), consistent with section 614(a)(14)(B) of the Act,
specifically requires that these personnel qualifications must include
qualifications for related services personnel. Establishing
qualifications for individuals providing speech-language services in
these regulations would be inconsistent with these statutory and
regulatory requrements.
Changes: None.
Comment: One commenter stated that the roles and responsibilities
for speech-language pathologists in schools have been expanded to help
all children gain language and literacy skills and recommended that the
definition of speech-language pathology services be revised to include
consultation and collaboration with other staff members to plan and
implement special intervention monitoring programs and modify classroom
instruction to assist children in achieving academic success. The
commenter also recommended including services for other health
impairments, such as dysphagia, in the definition of speech-language
pathology services.
Discussion: The Act provides for speech-language pathology services
for children with disabilities. It does not include speech-language
pathology services to enable all children to gain language and literacy
skills, as suggested by the commenter. It would, therefore, be
inconsistent with the Act to change the definition of speech-language
pathology services in the manner recommended by the commenter. We
believe that the definition is sufficiently broad to include services
for other health impairments, such as dysphagia, and therefore, decline
to revise the definition to include this specific service.
Changes: None.
Transportation (Sec. 300.34(c)(16))
Comment: A few commenters stated that the definition of
transportation should require transportation to be provided between
school and other locations in which IEP services are provided. Other
commenters requested that the definition explicitly define
transportation as door-to-door services, including provisions for an
aide to escort the child to and from the bus each day.
Discussion: A child's IEP Team is responsible for determining
whether transportation between school and other locations is necessary
in order for the child to receive FAPE. Likewise, if a child's IEP Team
determines that supports or modifications are needed in order for the
child to be transported so that the child can receive FAPE, the child
must receive the necessary transportation and supports at no cost to
the parents. We believe the definition of transportation is
sufficiently broad to address the commenters' concerns. Therefore, we
decline to make the requested changes to the definition.
Changes: None.
Comment: Some commenters recommended removing the term ``special
transportation'' from the definition of transportation because the term
gives the impression that adapted buses are used for a separate and
different transportation system, when, in fact, adapted buses are part
of the regular transportation fleet and system. These commenters stated
that adapted buses should only be used as a separate, special
transportation service if the child's IEP indicates that the
transportation needs of the child can be met only with transportation
services that are separate from the transportation services for all
children.
Discussion: We do not believe it is necessary to make the change
requested by the commenters. It is assumed that most children with
disabilities will receive the same transportation provided to
nondisabled children, consistent with the LRE requirements in
Sec. Sec. 300.114 through 300.120, unless the IEP Team determines
otherwise. While we understand the commenter's concern, adapted buses
may or may not be part of the regular transportation system in a
particular school system. In any case, if the IEP Team determines that
a child with a disability requires transportation as a related service
in order to receive FAPE, or requires supports to participate in
integrated transportation with nondisabled children, the child must
receive the necessary transportation or supports at no cost to the
parents.
Changes: None.
Scientifically Based Research (new Sec. 300.35)
Comment: A number of commenters requested that the regulations
include a definition of scientifically based research.
Discussion: The definition of scientifically based research is
important to the implementation of Part B of the Act and, therefore, we
will include a reference to the definition of that term in section
9101(37) of the ESEA.
For the reasons set forth earlier in this notice, we are not
including definitions from other statutes in these regulations.
However, we will include the current definition of scientifically based
research in section 9101(37) of the ESEA here for reference.
Scientifically based research--
(a) Means research that involves the application of rigorous,
systematic, and objective procedures to obtain reliable and valid
knowledge relevant to education activities and programs; and
(b) Includes research that--
(1) Employs systematic, empirical methods that draw on observation
or experiment;
(2) Involves rigorous data analyses that are adequate to test the
stated hypotheses and justify the general conclusions drawn;
(3) Relies on measurements or observational methods that provide
reliable and valid data across evaluators and observers, across
multiple measurements and observations, and across studies by the same
or different investigators;
(4) Is evaluated using experimental or quasi-experimental designs
in which individuals, entities, programs, or activities are assigned to
different conditions and with appropriate controls to evaluate the
effects of the condition of interest, with a preference for random-
assignment experiments, or other designs to the extent that those
designs contain within-condition or across-condition controls;
(5) Ensures that experimental studies are presented in sufficient
detail and clarity to allow for replication or, at a minimum, offer the
opportunity to build systematically on their findings; and
(6) Has been accepted by a peer-reviewed journal or approved by a
panel of independent experts through a comparably rigorous, objective,
and scientific review.
Changes: A cross-reference to the definition of scientifically
based research in section 9101(37) of the ESEA has been added as new
Sec. 300.35. Subsequent definitions have been renumbered accordingly.
Secondary School (New Sec. 300.36) (Proposed Sec. 300.35)
Comment: One commenter requested clarification regarding the
definition of secondary school and whether ``grade 12'' refers to the
regular grade 12 curriculum aligned to State academic achievement
standards under the ESEA or a limit on the number of years
[[Page 46577]]
children with a disabilities can spend in school.
Discussion: The term ``grade 12'' in the definition of secondary
school has the meaning given it under State law. It is not intended to
impose a Federal limit on the number of years a child with a disability
is allowed to complete his or her secondary education, as some children
with disabilities may need more than 12 school years to complete their
education.
Changes: None.
Services Plan (New Sec. 300.37) (Proposed Sec. 300.36)
Comment: One commenter stated that the term services plan is not in
the Act and, therefore, should be removed. However, the commenter
stated that if the definition of services plan remained in the
regulations, it should reflect the fact that parentally-placed private
school children are not entitled to FAPE.
Discussion: The definition of services plan was included to
describe the content, development, and implementation of plans for
parentally-placed private school children with disabilities who have
been designated to receive equitable services. The definition cross-
references the specific requirements for the provision of services to
parentally-placed private school children with disabilities in Sec.
300.132 and Sec. Sec. 300.137 through 300.139, which provide that
parentally-placed private school children have no individual right to
special education and related services and thus are not entitled to
FAPE. We do not believe further clarification is necessary.
Changes: None.
Special Education (New Sec. 300.39) (Proposed Sec. 300.38)
Comment: One commenter requested modifying the definition of
special education to distinguish special education from other forms of
education, such as remedial programming, flexible grouping, and
alternative education programming. The commenter stated that flexible
grouping, diagnostic and prescriptive teaching, and remedial
programming have expanded in the general curriculum in regular
classrooms and the expansion of such instruction will only be
encouraged with the implementation of early intervening services under
the Act.
Discussion: We believe the definition of special education is clear
and consistent with the definition in section 602(29) of the Act. We do
not believe it is necessary to change the definition to distinguish
special education from the other forms of education mentioned by the
commenter.
Changes: None.
Individual Special Education Terms Defined (New Sec. 300.39(b))
(Proposed Sec. 300.38(b))
Comment: A few commenters provided definitions of
``accommodations'' and ``modifications'' and recommended including them
in new Sec. 300.39(b) (proposed Sec. 300.38(b)).
Discussion: The terms ``accommodations'' and ``modifications'' are
terms of art referring to adaptations of the educational environment,
the presentation of educational material, the method of response, or
the educational content. They are not, however, examples of different
types of ``education'' and therefore we do not believe it is
appropriate to define these terms of art or to include them in new
Sec. 300.39(b) (proposed Sec. 300.38(b)).
Changes: None.
Physical Education (New Sec. 300.39(b)(2)) (Proposed Sec.
300.38(b)(2))
Comment: One commenter requested that adaptive physical education
be subject to the LRE requirements of the Act.
Discussion: The requirements in Sec. Sec. 300.114 through 300.120
require that, to the maximum extent appropriate, children with
disabilities are educated with children who are nondisabled. This
requirement applies to all special education services, including
adaptive physical education. We see no need to repeat this requirement
specifically for the provision of adaptive physical education.
Changes: None.
Specially Designed Instruction (New Sec. 300.39(b)(3)) (Proposed Sec.
300.38(b)(3))
Comment: One commenter stated that the regulations should
strengthen the requirements ensuring children access to the general
curriculum, because many children with disabilities still do not have
the tools they need or the teachers with expertise to access the
general curriculum.
Discussion: We believe the regulations place great emphasis on
ensuring that children with disabilities have access to the general
education curriculum. New Sec. 300.39(b)(3) (proposed Sec.
300.38(b)(3)) defines specially designed instruction as adapting the
content, methodology, or delivery of instruction to address the unique
needs of the child and to ensure access to the general curriculum so
that the child can meet the educational standards within the
jurisdiction of the public agency that apply to all children. In
addition, ensuring that children with disabilities have access to the
general curriculum is a major focus of the requirements for developing
a child's IEP. For example, Sec. 300.320(a)(1) requires a child's IEP
to include a statement of how the child's disability affects the
child's involvement and progress in the general education curriculum;
Sec. 300.320(a)(2)(i) requires annual IEP goals to be designed to
enable the child to be involved in and make progress in the general
education curriculum; and Sec. 300.320(a)(4) requires the IEP to
include a statement of the special education and related services the
child will receive, as well as the program modifications or supports
for school personnel that will be provided, to enable the child to be
involved in and make progress in the general education curriculum. We
do not believe additional language is necessary.
Changes: None.
Travel Training (New Sec. 300.39(b)(4)) (Proposed Sec. 300.38(b)(4))
Comment: A few commenters recommended strengthening the definition
of travel training in new Sec. 300.39(b)(4) (proposed Sec.
300.38(b)(4)) and adding travel training to new Sec. 300.43 (proposed
Sec. 300.42) (transition services) to acknowledge that transportation
is vitally important for children with disabilities to have full
participation in the community. The commenters recommended that the
definition of travel training include providing instruction to children
with disabilities, other than blindness, to enable them to learn the
skills and behaviors necessary to move effectively and safely in
various environments, including use of public transportation.
Discussion: We believe the definition of travel training already
acknowledges the importance of transportation in supporting children
with disabilities to fully participate in their communities. New Sec.
300.43(a)(4) (proposed Sec. 300.42(a)(4)) defines travel training to
include providing instruction that enables children to learn the skills
necessary to move effectively and safely from place to place in school,
home, at work and in the community. Therefore, we do not believe that
further clarification is necessary. We also do not believe that it is
necessary to add travel training to the definition of transition
services, as recommended by the commenters. We believe that IEP Teams
already consider the importance of transportation and travel training
services in the course of planning for a student's postsecondary
transition needs. It is unnecessary to state that travel training
includes instructing children with disabilities other than
[[Page 46578]]
blindness, as requested by the commenters, because the definition of
travel training already states that travel training is appropriate for
any child with a disability who requires this instruction.
Changes: None.
Comment: A few commenters strongly recommended clarifying that the
definition of travel training does not include training for children
with visual impairments, regardless of whether they have additional
disabilities.
Discussion: Any child with a disability, including a child with a
visual impairment, who needs travel training instruction to receive
FAPE, as determined by the child's IEP Team, can receive travel
training instruction. New Sec. 300.39(b)(4) (proposed Sec.
300.38(b)(4)) specifically states that travel training means providing
instruction to children with significant cognitive disabilities and any
other children with disabilities who require this instruction. We,
therefore, decline to change the definition, as recommended by the
commenters.
Changes: None.
Vocational Education (New Sec. 300.39(b)(5)) (Proposed Sec.
300.38(b)(5))
Comment: A few commenters recommended revising the definition of
vocational education to include specially designed educational programs
that are directly related to the preparation of individuals for paid or
unpaid employment or for additional preparation for a career not
requiring a baccalaureate or advanced degree.
Discussion: We believe that the more general reference to
``organized education programs'' in the definition of vocational
education is accurate and should not be changed to refer to ``specially
designed educational programs,'' as recommended by the commenter,
because some children with disabilities will benefit from educational
programs that are available for all children and will not need
specially designed programs.
Changes: None.
Comment: Some commenters stated that Congress did not intend that
the definition of vocational education would include vocational and
technical education. The commenters stated that the addition of
vocational and technical education to the definition of vocational
education creates a right under the Act to educational services that
would be extremely costly for States and LEAs to implement.
Other commenters stated that including the definition of vocational
and technical education from the Carl D. Perkins Act expands FAPE
beyond secondary education, which is an unwarranted responsibility for
school districts. One commenter stated that the definition could be
interpreted to require public agencies to provide two years of
postsecondary education for students with disabilities. A few
commenters strongly recommended removing the definition of vocational
and technical education.
Some commenters recommended removing the reference to the
postsecondary level for a 1-year certificate, an associate degree, and
industry-recognized credential in the definition of vocational and
technical education. One commenter suggested that proposed Sec.
300.38(b)(6)(i)(A) conclude with the word ``or'' to clarify that the
sequence of courses is discretionary.
Discussion: The definition of vocational education was revised to
include the definition of vocational and technical education in the
Carl D. Perkins Vocational and Applied Technology Act of 1988, as
amended, 20 U.S.C. 2301, 2302(29). However, based on the comments we
received, it is apparent that including the definition of vocational
and technical education has raised concerns and confusion regarding the
responsibilities of SEAs and LEAs to provide vocational education.
Therefore, we will remove the definition of vocational and technical
education in proposed Sec. 300.38(b)(6) and the reference to
vocational and technical education in proposed Sec. 300.38(b)(5)(ii).
Changes: The definition of vocational and technical education in
proposed Sec. 300.38(b)(6) has been removed. Accordingly, the
reference to vocational and technical education in proposed Sec.
300.38(b)(5)(ii)) has also been removed.
Supplementary Aids and Services (New Sec. 300.42) (Proposed Sec.
300.41)
Comment: A few commenters stated that the definition of
supplementary aids and services should be changed to mean aids,
services, and other supports provided in general education classes or
other settings to children with disabilities, as well as to educators,
other support staff, and nondisabled peers, if necessary, to support
the inclusion of children with disabilities.
Discussion: The definition of supplementary aids and services in
new Sec. 300.42 (proposed Sec. 300.41) is consistent with the
specific language in section 602(33) of the Act, and refers to aids,
services, and other supports for children with disabilities. We do not
believe it is necessary to change the definition to include providing
aids, services, and supports to other individuals because Sec.
300.320(a)(4) requires each child's IEP to include a statement of the
program modifications or supports for school personnel that will be
provided to enable the child to be involved in and make progress in the
general education curriculum, and to participate in extracurricular and
other nonacademic activities.
As noted in the Analysis of Comments and Changes section for
subpart B, we have clarified in Sec. 300.107(a) that States must
ensure that public agencies take steps to provide nonacademic and
extracurricular services and activities, including providing
supplementary aids and services determined appropriate and necessary by
the child's IEP Team to afford children with disabilities an equal
opportunity for participation in those services and activities. We
have, therefore, revised the definition of supplementary aids and
services in new Sec. 300.42 (proposed Sec. 300.41) to be consistent
with this change.
Changes: We have added language in new Sec. 300.42 (proposed Sec.
300.41) to clarify that supplementary aids and services can be provided
in extracurricular and nonacademic settings to enable children with
disabilities to be educated with nondisabled children to the maximum
extent appropriate.
Comment: None.
Discussion: New Sec. 300.42 (proposed Sec. 300.41) contains an
incorrect reference to Sec. 300.112. The correct reference should be
to Sec. 300.114.
Changes: We have removed the reference to Sec. 300.112 and
replaced it with a reference to Sec. 300.114.
Transition Services (New Sec. 300.43) (Proposed Sec. 300.42)
Comment: One commenter recommended replacing the word ``child''
with ``student'' in the definition of transition services.
Discussion: The definition of transition services follows the
language in section 602(34) of the Act. The words ``child'' and
``student'' are used throughout the Act and we have used the statutory
language in these regulations whenever possible.
Changes: None.
Comment: One commenter recommended that the regulations include
vocational and career training through work-study as a type of
transition service. A few commenters stated that the definition of
transition services must specify that a student's need for transition
services cannot be based on the category or severity of a student's
disability, but rather on the student's individual needs.
[[Page 46579]]
Discussion: We do not believe it is necessary to change the
definition of transition services because the definition is written
broadly to include a range of services, including vocational and career
training that are needed to meet the individual needs of a child with a
disability. The definition clearly states that decisions regarding
transition services must be made on the basis of the child's individual
needs, taking into account the child's strengths, preferences, and
interests. As with all special education and related services, the
student's IEP Team determines the transition services that are needed
to provide FAPE to a child with a disability based on the needs of the
child, not on the disability category or severity of the disability. We
do not believe further clarification is necessary.
Changes: None.
Comment: A few commenters stated that the regulations do not define
``functional'' or explain how a student's functional performance
relates to the student's unique needs or affects the student's
education. The commenters noted that the word ``functional'' is used
throughout the regulations in various forms, including ``functional
assessment,'' ``functional goals,'' ``functional abilities,''
``functional needs,'' ``functional achievement,'' and ``functional
performance,'' and should be defined to avoid confusion. One commenter
recommended either defining the term or explicitly authorizing States
to define the term.
One commenter recommended clarifying that ``functional
performance'' must be a consideration for any child with a disability
who may need services related to functional life skills and not just
for students with significant cognitive disabilities. A few commenters
stated that the definition of transition services must specify that
``functional achievement'' includes achievement in all major life
functions, including behavior, social-emotional development, and daily
living skills.
Discussion: We do not believe it is necessary to include a
definition of ``functional'' in these regulations because the word is
generally used to refer to activities and skills that are not
considered academic or related to a child's academic achievement as
measured on Statewide achievement tests. There is nothing in the Act
that would prohibit a State from defining ``functional,'' as long as
the definition and its use are consistent with the Act.
We also do not believe it is necessary for the definition of
transition services to refer to all the major life functions or to
clarify that functional performance must be a consideration for any
child with a disability, and not just for students with significant
cognitive disabilities. As with all special education and related
services, the student's IEP Team determines the services that are
needed to provide FAPE to a child with a disability based on the needs
of the child.
Changes: None.
Comment: One commenter requested a definition of ``results-oriented
process.''
Discussion: The term ``results-oriented process,'' which appears in
the statutory definition of transition services, is generally used to
refer to a process that focuses on results. Because we are using the
plain meaning of the term (i.e., a process that focuses on results), we
do not believe it is necessary to define the term in these regulations.
Changes: None.
Comment: A few commenters stated that ``acquisition of daily living
skills and functional vocational evaluation'' is unclear as a child
does not typically ``acquire'' an evaluation. The commenters stated
that the phrase should be changed to ``functional vocational skills.''
Discussion: We agree that the phrase is unclear and will clarify
the language in the regulation to refer to the ``provision of a
functional vocational evaluation.''
Changes: We have added ``provision of a'' before ``functional
vocational evaluation'' in new Sec. 300.43(a)(2)(v) for clarity.
Universal Design (New Sec. 300.44) (Proposed Sec. 300.43)
Comment: Many commenters requested including the full definition of
universal design in the regulations, rather than providing a reference
to the definition of the term.
Discussion: The term universal design is defined in the Assistive
Technology Act of 1998, as amended. For the reasons set forth earlier
in this notice, we are not including in these regulations full
definitions of terms that are defined in other statutes. However, we
will include the definition of this term from section 3 of the
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002, here for
reference.
The term universal design means a concept or philosophy for
designing and delivering products and services that are usable by
people with the widest possible range of functional capabilities, which
include products and services that are directly accessible (without
requiring assistive technologies) and products and services that are
interoperable with assistive technologies.
Changes: None.
Comment: Several commenters stated that the definition of universal
design should be changed to include the universal design of academic
content standards, curricula, instructional materials, and assessments.
Discussion: The definition of universal design is statutory.
Congress clearly intended that we use this specific definition when it
used this term in the Act. We do not believe we can change this
definition as suggested by the commenters.
Changes: None.
Subpart B--State Eligibility
FAPE Requirements
Free Appropriate Public Education (FAPE) (Sec. 300.101)
Comment: One commenter recommended revising Sec. 300.101 to ensure
that children with disabilities who are suspended or expelled from
their current placement are provided educational services consistent
with State academic achievement standards. One commenter asked whether
children with disabilities who are suspended or expelled from their
current placement must continue to be taught by highly qualified
teachers.
Discussion: We believe the concern raised by the commenter is
already addressed by this regulation and elsewhere in the regulations
and that no changes to Sec. 300.101 are necessary. Section 300.530(d),
consistent with section 615(k)(1)(D) of the Act, clarifies that a child
with a disability who is removed from his or her current placement for
disciplinary reasons, irrespective of whether the behavior is
determined to be a manifestation of the child's disability, must be
allowed to participate in the general education curriculum, although in
another setting, and to progress toward meeting his or her IEP goals.
As the term ``general education curriculum'' is used throughout the Act
and in these regulations, the clear implication is that there is an
education curriculum that is applicable to all children and that this
curriculum is based on the State's academic content standards.
Children with disabilities who are suspended or expelled from their
current placement in public schools must continue to be taught by
highly qualified teachers, consistent with the requirements in
Sec. Sec. 300.156 and 300.18. Private school teachers are not subject
to the highly qualified teacher requirements under this part.
Changes: None.
[[Page 46580]]
Comment: One commenter suggested clarifying in Sec. 300.101 that
FAPE must be available to children with disabilities in the least
restrictive environment.
Discussion: We do not believe further clarification is needed in
Sec. 300.101, as the matter is adequately covered elsewhere in the
regulations. Section 300.101 clarifies that, in order to be eligible to
receive funds under Part B of the Act, States must, among other
conditions, ensure that FAPE is made available to all children with
specified disabilities in mandated age ranges. The term FAPE is defined
in Sec. 300.17 and section 602(9)(D) of the Act as including, among
other elements, special education and related services, provided at no
cost to parents, in conformity with an individualized education program
(IEP). Sections 300.114 through 300.118, consistent with section
612(a)(5) of the Act, implement the Act's strong preference for
educating children with disabilities in regular classes with
appropriate aids and supports. Specifically, Sec. 300.114 provides
that States must have in effect policies and procedures ensuring that,
to the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are nondisabled, and that
special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only if
the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily.
Changes: None.
Comment: A few commenters recommended including language in Sec.
300.101(a) specifying that children with disabilities expelled or
suspended from the general education classroom must be provided FAPE in
the least restrictive environment.
Discussion: The Department believes it would not be appropriate to
include the requested language in this section because services in
these circumstances are provided under somewhat different criteria than
is normally the case. Section 300.530 clarifies the procedures school
personnel must follow when removing a child with a disability who
violates a code of student conduct from their current placement (e.g.,
suspension and expulsion). This includes how decisions are made
regarding the educational services the child receives and the location
in which they will be provided. School officials need some reasonable
amount of flexibility in providing services to children with
disabilities who have violated school conduct rules, and should not
necessarily have to provide exactly the same services, in the same
settings, to these children. Therefore, we decline to regulate further
in this regard.
Changes: None.
Comment: Some commenters expressed concern that children with
disabilities have to fail or be retained in a grade or course in order
to be considered eligible for special education and related services.
Discussion: Section 300.101(c) provides that a child is eligible to
receive special education and related services even though the child is
advancing from grade to grade. Further, it is implicit from paragraph
(c) of this section that a child should not have to fail a course or be
retained in a grade in order to be considered for special education and
related services. A public agency must provide a child with a
disability special education and related services to enable him or her
to progress in the general curriculum, thus making clear that a child
is not ineligible to receive special education and related services
just because the child is, with the support of those individually
designed services, progressing in the general curriculum from grade-to-
grade or failing a course or grade. The group determining the
eligibility of a child for special education and related services must
make an individual determination as to whether, notwithstanding the
child's progress in a course or grade, he or she needs or continues to
need special education and related services. However, to provide
additional clarity we will revise paragraph (c)(1) of this section to
explicitly state that children do not have to fail or be retained in a
course or grade in order to be considered eligible for special
education and related services.
Changes: Section 300.101(c)(1) has been revised to provide that
children do not have to fail or be retained in a course or grade in
order to be considered eligible for special education and related
services.
Limitation--Exception to FAPE for Certain Ages (Sec. 300.102)
Comment: One commenter requested that the regulations clarify that
children with disabilities who do not receive a regular high school
diploma continue to be eligible for special education and related
services. One commenter expressed concern that the provision in Sec.
300.102(a)(3)(ii) regarding children with disabilities who have not
been awarded a regular high school diploma could result in the delay of
transition services in the context of the child's secondary school
experience and postsecondary goals.
Discussion: We believe that Sec. 300.102(a)(3) is sufficiently
clear that public agencies need not make FAPE available to children
with disabilities who have graduated with a regular high school diploma
and that no change is needed to the regulations. Children with
disabilities who have not graduated with a regular high school diploma
still have an entitlement to FAPE until the child reaches the age at
which eligibility ceases under the age requirements within the State.
However, we have reviewed the regulations and believe that it is
important for these regulations to define ``regular diploma''
consistent with the ESEA regulations in 34 CFR Sec. 200.19(a)(1)(i).
Therefore, we will add language to clarify that a regular high school
diploma does not include an alternative degree that is not fully
aligned with the State's academic standards, such as a certificate or
general educational development (GED) credential.
We do not believe Sec. 300.102 could be interpreted to permit
public agencies to delay implementation of transition services, as
stated by one commenter because transition services must be provided
based on a child's age, not the number of years the child has remaining
in the child's high school career. Section 300.320(b), consistent with
section 614(d)(1)(A)(i)(VIII) of the Act, requires each child's IEP to
include, beginning not later than the first IEP to be in effect when
the child turns 16, or younger if determined appropriate by the IEP
Team, appropriate measurable postsecondary goals and the transition
services needed to assist the child in reaching those goals.
Changes: A new paragraph (iv) has been added in Sec. 300.102(a)(3)
stating that a regular high school diploma does not include an
alternative degree that is not fully aligned with the State's academic
standards, such as a certificate or GED.
Comment: One commenter requested clarification as to how States
should include children with disabilities who require special education
services through age 21 in calculating, for adequate yearly progress
(AYP) purposes, the percentage of children who graduate with a regular
high school diploma in the standard number of years. The commenter
expressed concern that States, in order to comply with their high
school graduation rate academic outcome requirements under the ESEA,
will change the grade status from 12th grade to 11th grade for those
children with disabilities who will typically age out of the public
education
[[Page 46581]]
system under the Act. The commenter further stated that this will
affect the exception to FAPE provisions in Sec. 300.102 for children
with disabilities who require special education services through age
21.
Discussion: The calculation of graduation rates under the ESEA for
AYP purposes (34 CFR 200.19(a)(1)(i)) does not alter the exception to
FAPE provisions in Sec. 300.102(a)(3) for children with disabilities
who graduate from high school with a regular high school diploma, but
not in the standard number of years. The public agency must make FAPE
available until age 21 or the age limit established by State law, even
though the child would not be included as graduating for AYP purposes
under the ESEA. In practice, though, there is no conflict between the
Act and the ESEA, as the Department interprets the ESEA title I
regulations to permit States to propose a method for accurately
accounting for students who legitimately take longer than the standard
number of years to graduate.
Changes: None.
Residential Placement: (Sec. 300.104)
Comment: A few commenters requested that the regulations clarify
that parents cannot be held liable for any costs if their child with a
disability is placed in a residential setting by a public agency in
order to provide FAPE to the child.
Discussion: Section 300.104, consistent with section 612(a)(1) and
(a)(10)(B) of the Act, is a longstanding provision that applies to
placements that are made by public agencies in public and private
institutions for educational purposes and clarifies that parents are
not required to bear the costs of a public or private residential
placement if such placement is determined necessary to provide FAPE. If
a public agency determines in an individual situation that a child with
a disability cannot receive FAPE from the programs that the public
agency conducts and, therefore, placement in a public or private
residential program is necessary to provide special education and
related services to the child, the program, including non-medical care
and room and board, must be at no cost to the parents of the child.
In situations where a child's educational needs are inseparable
from the child's emotional needs and an individual determination is
made that the child requires the therapeutic and habilitation services
of a residential program in order to ``benefit from special
education,'' these therapeutic and habilitation services may be
``related services'' under the Act. In such a case, the SEA is
responsible for ensuring that the entire cost of that child's
placement, including the therapeutic care as well as room and board, is
without cost to the parents. However, the SEA is not responsible for
providing medical care. Thus, visits to a doctor for treatment of
medical conditions are not covered services under Part B of the Act and
parents may be responsible for the cost of the medical care.
Changes: None.
Assistive Technology (Sec. 300.105)
Comment: One commenter recommended removing Sec. 300.105 and
including the requirements in this section in the definition of
assistive technology device in Sec. 300.5 and assistive technology
service in Sec. 300.6.
Discussion: Section 300.5 and Sec. 300.6 define the terms
assistive technology device and assistive technology service,
respectively. Section 300.105 is not part of the definition of these
terms, but rather is necessary to specify the circumstances under which
public agencies are responsible for making available assistive
technology devices and assistive technology services to children with
disabilities.
Changes: None.
Comment: A few commenters requested clarifying in Sec. 300.105(b)
whether hearing aids are included in the definition of an assistive
technology device.
Discussion: An assistive technology device, as defined in Sec.
300.5, means any item, piece of equipment, or product system that is
used to increase, maintain, or improve the functional capabilities of a
child with a disability. The decision of whether a hearing aid is an
assistive technology device is a determination that is made on an
individual basis by the child's IEP Team. However, even if the IEP Team
determines that a hearing aid is an assistive technology device, within
the meaning of Sec. 300.5, for a particular child, the public agency
is responsible for the provision of the assistive technology device as
part of FAPE, only if, as specified in Sec. 300.105, the device is
required as part of the child's special education defined in Sec.
300.39, related services defined in Sec. 300.34, or supplementary aids
and services defined in Sec. 300.42.
As a general matter, public agencies are not responsible for
providing personal devices, such as eyeglasses or hearing aids that a
child with a disability requires, regardless of whether the child is
attending school. However, if it is not a surgically implanted device
and a child's IEP Team determines that the child requires a personal
device (e.g., eyeglasses) in order to receive FAPE, the public agency
must ensure that the device is provided at no cost to the child's
parents.
Changes: None.
Comment: One commenter recommended adding language to Sec.
300.105(b) to include, in addition to hearing aids, other hearing
enhancement devices, such as a cochlear implant.
Discussion: Section 300.105(b), as proposed, requires a public
agency to ensure that hearing aids worn in school by children with
hearing impairments, including deafness, are functioning properly. This
is a longstanding requirement and was included pursuant to a House
Committee Report on the 1978 appropriations bill (H. Rpt. No. 95-381,
p. 67 (1977)) directing the Department to ensure that children with
hearing impairments are receiving adequate professional assessment,
follow-up, and services. The Department believes that, given the
increase in the number of children with disabilities with surgically
implanted devices (e.g., cochlear implants, vagus nerve stimulators,
electronic muscle stimulators), and rapid advances in new technologies
to help children with disabilities, it is important that these
regulations clearly address any obligation public agencies have to
provide follow-up and services to ensure that such devices are
functioning properly.
Section 602(1) of the Act clarifies that the definition of
assistive technology device does not include a medical device that is
surgically implanted or the replacement of such device. Section 602(26)
of the Act also stipulates that only medical services that are for
diagnostic and evaluative purposes and required to assist a child with
a disability to benefit from special education are considered a related
service. We believe Congress was clear in its intent in S. Rpt. 108-
185, p. 8, which states:
[T]he definitions of ``assistive technology device'' and
``related services'' do not include a medical device that is
surgically implanted, or the post-surgical maintenance, programming,
or replacement of such device, or an external device connected with
the use of a surgically implanted medical device (other than the
costs of performing routine maintenance and monitoring of such
external device at the same time the child is receiving other
services under the act).
The Department believes, however, that public agencies have an
obligation to change a battery or routinely check an external component
of a surgically
[[Page 46582]]
implanted medical device to make sure it is turned on and operating.
However, mapping a cochlear implant (or paying the costs associated
with mapping) is not routine checking as described above and should not
be the responsibility of a public agency. We will add language to the
regulations to clarify a public agency's responsibility regarding the
routine checking of external components of surgically implanted medical
devices.
Changes: A new Sec. 300.113 has been added with the heading,
``Routine checking of hearing aids and external components of
surgically implanted medical devices.'' Section 300.105(b), regarding
the proper functioning of hearing aids, has been removed and
redesignated as new Sec. 300.113(a). We have added a new paragraph (b)
in new Sec. 300.113 clarifying that, for a child with a surgically
implanted medical device who is receiving special education and related
services under this part, a public agency is responsible for routine
checking of external components of surgically implanted medical
devices, but is not responsible for the post-surgical maintenance,
programming, or replacement of a medical device that has been
surgically implanted (or of an external component of a surgically
implanted medical device).
The provisions in Sec. 300.105 have been changed to conform with
the other changes to this section and the phrase ``proper functioning
of hearing aids'' has been removed from the heading.
Extended School Year Services (Sec. 300.106)
Comment: Several commenters recommended removing Sec. 300.106
because the requirement to provide extended school year (ESY) services
to children with disabilities is not required in the Act.
Discussion: The requirement to provide ESY services to children
with disabilities who require such services in order to receive FAPE
reflects a longstanding interpretation of the Act by the courts and the
Department. The right of an individual child with a disability to
receive ESY services is based on that child's entitlement to FAPE under
section 612(a)(1) of the Act. Some children with disabilities may not
receive FAPE unless they receive necessary services during times when
other children, both disabled and nondisabled, normally would not be
served. We believe it is important to retain the provisions in Sec.
300.106 because it is necessary that public agencies understand their
obligation to ensure that children with disabilities who require ESY
services in order to receive FAPE have the necessary services available
to them, and that individualized determinations about each disabled
child's need for ESY services are made through the IEP process.
Changes: None.
Comment: One commenter stated that the ESY requirements in Sec.
300.106 should not be included as part of the State eligibility
requirements and would be more appropriately included in the definition
of FAPE in Sec. 300.17.
Discussion: The definition of FAPE in Sec. 300.17 is taken
directly from section 602(9) of the Act. We believe the ESY
requirements are appropriately included under the FAPE requirements as
a part of a State's eligibility for assistance under Part B of the Act
because the right of an individual child with a disability to ESY
services is based on a child's entitlement to FAPE. As a part of the
State's eligibility for assistance under Part B of the Act, the State
must make FAPE available to all children with disabilities residing in
the State in mandated age ranges.
Changes: None.
Comment: One commenter recommended removing the word ``only'' in
Sec. 300.106(a)(2) because it is unduly limiting.
Discussion: The inclusion of the word ``only'' is intended to be
limiting. ESY services must be provided ``only'' if a child's IEP Team
determines, on an individual basis, in accordance with Sec. Sec.
300.320 through 300.324, that the services are necessary for the
provision of FAPE to the child. We do not think this language is overly
restrictive; instead, we think it is necessary for providing
appropriate parameters to the responsibility of the IEP Team.
Changes: None.
Comment: A few commenters suggested revising Sec. 300.106(a)(3)(i)
to specifically state that, in addition to particular categories of
disabilities, public agencies may not limit ESY services to particular
age ranges. Other commenters proposed adding ``preschooler with a
disability'' to the definition of ESY services in Sec. 300.106(b)(1).
Discussion: The revisions recommended by the commenters are not
necessary. Section 300.106(a) clarifies that each public agency must
ensure that ESY services are available for children with disabilities
if those services are necessary for the children to receive FAPE.
Section 300.101(a) clearly states that FAPE must be available to all
children aged 3 through 21, inclusive, residing in the State, except
for children ages 3, 4, 5, 18, 19, 20, or 21 to the extent that its
application to those children would be inconsistent with State law or
practice, or the order of any court, regarding the provision of public
education to children of those ages. We do not believe any further
clarification is necessary.
Changes: None.
Comment: One commenter requested that language be added to Sec.
300.106(b)(1)(i) to clarify that providing ESY services to a child with
a disability beyond the normal school year includes, but is not limited
to, before and after regular school hours, on weekends, and during
regular school vacations.
Discussion: Typically, ESY services are provided during the summer
months. However, there is nothing in Sec. 300.106 that would limit a
public agency from providing ESY services to a child with a disability
during times other than the summer, such as before and after regular
school hours or during school vacations, if the IEP Team determines
that the child requires ESY services during those time periods in order
to receive FAPE. The regulations give the IEP Team the flexibility to
determine when ESY services are appropriate, depending on the
circumstances of the individual child.
Changes: None.
Comment: One commenter suggested adding language to Sec. 300.106
clarifying that ``recoupment and retention'' should not be used as the
sole criteria for determining the child's eligibility for ESY services.
Discussion: We do not believe the commenter's suggested change
should be made. The concepts of ``recoupment'' and ``likelihood of
regression or retention'' have formed the basis for many standards that
States use in making ESY eligibility determinations and are derived
from well-established judicial precedents. (See, for example, Johnson
v. Bixby Independent School District 4, 921 F.2d 1022 (10th Cir. 1990);
Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel,
716 F.2d 1565 (11th Cir. 1983)). States may use recoupment and
retention as their sole criteria but they are not limited to these
standards and have considerable flexibility in determining eligibility
for ESY services and establishing State standards for making ESY
determinations. However, whatever standard a State uses must be
consistent with the individually-oriented requirements of the Act and
may not limit eligibility for ESY services to children with a
particular disability category or be applied in a manner that denies
children with disabilities who
[[Page 46583]]
require ESY services in order to receive FAPE access to necessary ESY
services.
Changes: None.
Nonacademic Services (Sec. 300.107)
Comment: One commenter recommended adding more specific language in
Sec. 300.107 regarding services and accommodations available for
nonacademic activities to ensure that children with disabilities are
fully included in nonacademic activities.
Discussion: We agree with the commenter. Section 300.107(a), as
proposed, requires public agencies to take steps to provide nonacademic
and extracurricular services and activities in a manner necessary to
afford children with disabilities an equal opportunity to participate
in those services and activities. In addition, Sec. 300.320(a)(4)(ii),
consistent with section 614(d)(1)(i)(IV)(bb) of the Act, clarifies that
an IEP must include a statement of the special education and related
services and supplementary aids and services to be provided to the
child to participate in extracurricular and other nonacademic
activities. We will add language in Sec. 300.107(a) to clarify that
the steps taken by public agencies to provide access to nonacademic and
extracurricular services and activities include the provision of
supplementary aids and services determined appropriate and necessary by
the child's IEP Team.
Changes: Additional language has been added in Sec. 300.107(a) to
clarify that the steps taken by public agencies to provide access to
nonacademic and extracurricular services and activities include the
provision of supplementary aids and services determined appropriate and
necessary by the child's IEP Team.
Comment: One commenter expressed concern about including
``nonacademic services'' in Sec. 300.107, because it is not in the
Act. The commenter stated that services such as athletics, recreational
activities and clubs, counseling, transportation and health services
should not be included in the regulations because they may be costly
and are usually available on a limited basis. One commenter stated that
it is confusing to include related services in the examples of
nonacademic services and recommended that they be removed.
Discussion: The list of nonacademic and extracurricular services
and activities in Sec. 300.107(b) is not exhaustive. The list provides
public agencies with examples of services and activities that may
afford children with disabilities an equal opportunity for
participation in the services offered to other children of the public
agency. We disagree that the list of activities causes confusion with
related services, as we think that the public can easily recognize the
difference between academic counseling services, for example, that are
offered to all children, and the type of counseling services that might
be included in a child's IEP as a related service. For these reasons,
we believe it is appropriate to maintain the list of nonacademic and
extracurricular services and activities in Sec. 300.107, including
those services that are also related services in Sec. 300.34.
Changes: None.
Physical Education (Sec. 300.108)
Comment: A few commenters stated that, in some States, physical
education is not required for every nondisabled child every year and
this creates situations in which children with disabilities are in
segregated physical education classes. The commenters recommended that
the regulations clarify the requirements for public agencies to make
physical education available to children with disabilities when
physical education is not available to children without disabilities.
Discussion: Section 300.108 describes two considerations that a
public agency must take into account to meet the physical education
requirements in this section. First, physical education must be made
available equally to children with disabilities and children without
disabilities. If physical education is not available to all children
(i.e., children with and without disabilities), the public agency is
not required to make physical education available for children with
disabilities (e.g., a district may provide physical education to all
children through grade 10, but not to any children in their junior and
senior years). Second, if physical education is specially designed to
meet the unique needs of a child with a disability and is set out in
that child's IEP, those services must be provided whether or not they
are provided to other children in the agency.
This is the Department's longstanding interpretation of the
requirements in Sec. 300.108 and is based on legislative history that
the intent of Congress was to ensure equal rights for children with
disabilities. The regulation as promulgated in 1977 was based on an
understanding that physical education was available to all children
without disabilities and, therefore, must be made available to all
children with disabilities. As stated in H. Rpt. No. 94-332, p. 9,
(1975):
Special education as set forth in the Committee bill includes
instruction in physical education, which is provided as a matter of
course to all non-handicapped children enrolled in public elementary
and secondary schools. The Committee is concerned that although
these services are available to and required of all children in our
school systems, they are often viewed as a luxury for handicapped
children.
We agree that Sec. 300.108(a) could be interpreted to mean that
physical education must be made available to all children with
disabilities, regardless of whether physical education is provided to
children without disabilities. We will, therefore, revise paragraph (a)
to clarify that the public agency has no obligation to provide physical
education for children with disabilities if it does not provide
physical education to nondisabled children attending their schools.
Changes: Section 300.108(a) has been revised as described in the
preceding paragraph.
Full Education Opportunity Goal (FEOG) (Sec. 300.109)
Comment: One commenter requested that the regulations clarify how a
State communicates and monitors the progress of the State's FEOG.
Discussion: We do not believe it is appropriate to regulate how a
State communicates and monitors its progress toward the State's FEOG.
We believe the State should have the flexibility needed to implement
the provisions of this section and the State is in the best position to
make this determination.
Changes: None.
Program Options (Sec. 300.110)
Comment: A few commenters recommended revising Sec. 300.110 to
require States to ensure that each public agency have in effect
policies, procedures, and programs to provide children with
disabilities the variety of educational programs and services available
to nondisabled children. The commenters stated that Sec. 300.110 does
not provide any guidance to educators. A few commenters stated that
``vocational education is an outdated term'' and proposed replacing it
with ``career-technical and adult education'' or ``career and technical
education.''
Discussion: We do not believe it is necessary to change Sec.
300.110. Under this provision, States must ensure that public agencies
take steps to ensure that children with disabilities have access to the
same program options that are available to nondisabled children in the
area served by the agency, whatever those options are, and we are not
aware of any implementation problems with
[[Page 46584]]
this requirement. We believe that it is important that educators
understand that children with disabilities must have access to the same
range of programs and services that a public agency provides to
nondisabled children and that the regulation conveys this point. We
also do not believe it is necessary to replace the term ``vocational
education'' with the language recommended by the commenter. The term is
broad in its meaning and generally accepted and understood in the field
and, therefore, would encompass such areas as ``career-technical'' and
``technical education.''
Changes: None.
Comment: Several commenters requested that the regulations
explicitly state that a child with a disability who has not yet
received a regular high school diploma or ``aged out'' of special
education may participate in dual enrollment programs and receive
services in a postsecondary or community-based setting if the IEP Team
decides it is appropriate.
Discussion: Section 300.110, consistent with section 612(a)(2) of
the Act, requires States to ensure that public agencies take steps to
ensure that children with disabilities have access to the same program
options that are available to nondisabled children in the area served
by the agency. This would apply to dual enrollment programs in post-
secondary or community-based settings. Therefore, a State would be
responsible for ensuring that a public agency that offered dual
enrollment programs in post-secondary or community-based settings to a
nondisabled student would have that option available to a student with
disabilities whose IEP Team determined that such a program would best
meet the student's needs. However, we do not believe that the Act
requires public agencies to provide dual enrollment programs in post-
secondary or community-based settings for students with disabilities,
if such programs are not available to nondisabled secondary school
students. Therefore, we are not modifying the regulations.
Changes: None.
Child Find (Sec. 300.111)
Comment: Several commenters expressed confusion about the child
find requirements in Sec. 300.111 and the parental consent
requirements in Sec. 300.300, and requested clarification on whether
child find applies to private school children and whether LEAs may use
the consent override procedures for children with disabilities enrolled
in private schools. Two commenters requested that Sec.
300.111(a)(1)(i) specify that child find does not apply to private
school children whose parents refuse consent.
Discussion: This issue is addressed in the Analysis of Comments and
Changes section for subpart D in response to comments on Sec. 300.300.
Changes: None.
Comment: One commenter recommended retaining current Sec.
300.125(b) to ensure that the child find requirements are retained for
parentally-placed private school children.
Discussion: Current Sec. 300.125(b) was removed from these
regulations because, under the Act, States are no longer required to
have State policies and procedures on file with the Secretary.
Furthermore, the Department believes the requirements in Sec. Sec.
300.111 and 300.131 adequately ensure that parentally-placed private
school children are considered in the child find process.
Changes: None.
Comment: One commenter requested a definition of the term ``private
school,'' as used in Sec. 300.111.
Discussion: The term ``private school'' as used in Sec. 300.111
means a private elementary school or secondary school, including a
religious school. The terms elementary school and secondary school are
defined in subpart A of these regulations. The term private is defined
in 34 CFR Part 77, which applies to this program, and we see no need to
include those definitions here.
Changes: None.
Comment: One commenter requested that the child find requirements
in Sec. 300.111(c)(2) include homeless children.
Discussion: Homeless children are already included in the child
find requirements. Section 300.111(a)(1)(i) clarifies that the State
must have policies and procedures to ensure that children with
disabilities who are homeless and who are in need of special education
and related services, are identified, located, and evaluated. No
further clarification is needed.
Changes: None.
Comment: A few commenters recommended including in Sec. 300.111
the requirements in current Sec. 300.125(c), regarding child find for
children from birth through age two when the SEA and lead agency for
the Part C program are different. The commenters stated that this will
ensure that children with disabilities from birth through age two are
eligible to participate in child find activities when the Part C lead
agency is not the SEA.
Discussion: The Department does not believe it is necessary to
retain the language in current Sec. 300.125(c). The child find
requirements in Sec. 300.111 have traditionally been interpreted to
mean identifying and evaluating children beginning at birth. While
child find under Part C of the Act overlaps, in part, with child find
under Part B of the Act, the coordination of child find activities
under Part B and Part C is an implementation matter that is best left
to each State. Nothing in the Act or these regulations prohibits a Part
C lead agency's participation, with the agreement of the SEA, in the
actual implementation of child find activities for infants and toddlers
with disabilities.
Changes: None.
Comment: One commenter recommended removing Sec. 300.111(c)
because child find for children with developmental delays, older
children progressing from grade to grade, and highly mobile children is
not specifically required by the Act.
Discussion: The changes requested by the commenter cannot be made
because they are inconsistent with the Act. Section 300.111(a)(1)(i),
consistent with section 612(a)(3)(A) of the Act, explicitly requires
that all children with disabilities residing in the State are
identified, located, and evaluated. This includes children suspected of
having developmental delays, as defined in section 602(3)(B) of the
Act. We recognize that it is difficult to locate, identify, and
evaluate highly mobile and migrant children with disabilities. However,
we strongly believe it is important to stress in these regulations that
the States' child find responsibilities in Sec. 300.111 apply equally
to such children. We also believe it is important to clarify that a
child suspected of having a disability but who has not failed, is
making academic progress, and is passing from grade to grade must be
considered in the child find process as any other child suspected of
having a disability. As noted earlier in the discussion regarding Sec.
300.101, paragraph (c)(1) of Sec. 300.111 has been revised to clarify
that children do not have to fail or be retained in a course or grade
in order to be considered for special education and related services.
Changes: None.
Comment: One commenter requested that Sec. 300.111 explicitly
require that children in residential facilities be included in the
public agency's child find process.
Discussion: We believe Sec. 300.111(a), consistent with section
612(a)(3)(A) of the Act, clarifies that the State must ensure that all
children with disabilities residing in the State are identified,
located, and evaluated. This would
[[Page 46585]]
include children in residential facilities. No further clarification is
necessary.
Changes: None.
Individualized Education Programs (IEP) (Sec. 300.112)
Comment: One commenter objected to including the reference to Sec.
300.300(b)(3)(ii) in Sec. 300.112, stating that it is not necessary to
ensure compliance with the requirement for an IEP or IFSP to be
developed, reviewed, and revised for each child with a disability.
Discussion: Section 300.300(b)(3)(ii) states that if a parent
refuses to consent to the initial provision of special education and
related services, or the parent fails to respond to a request to
provide consent for the initial provision of special education and
related services, the public agency is not required to convene an IEP
meeting or develop an IEP for the child. It is necessary to include
this reference in Sec. 300.112 to clarify the circumstances under
which a public agency is not required to develop an IEP for an eligible
child with a disability.
Changes: None.
Routine Checking of Hearing Aids and External Components of Surgically
Implanted Medical Devices (Sec. 300.113)
Comment: None.
Discussion: New Sec. 300.113 is addressed in the Analysis of
Comments and Changes section for subpart A in response to comments on
Sec. 300.34(b).
Changes: We have added new Sec. 300.113 to cover the routine
checking of hearing aids and external components of surgically
implanted medical devices. The requirement for the routine checking of
hearing aids has been removed from proposed Sec. 300.105 and included
in new Sec. 300.113(a). The requirement for routine checking of an
external component of a surgically implanted medical device has been
added as new Sec. 300.113(b). The requirements for assistive
technology devices and services remain in Sec. 300.105 and the heading
has been changed to reflect this change. We have also included a
reference to new Sec. 300.113(b) in new Sec. 300.34(b)(2).
Least Restrictive Environment (LRE)
LRE Requirements (Sec. 300.114)
Comment: One commenter recommended including language in the
regulations that respects and safeguards parental involvement and
protects the rights of children with disabilities to be educated in the
least restrictive environment (LRE).
Discussion: We believe that the LRE requirements in Sec. Sec.
300.114 through 300.120 address the rights of children with
disabilities to be educated in the LRE, as well as safeguard parental
rights. Section 300.114, consistent with section 612(a)(5) of the Act,
requires each public agency to ensure that, to the maximum extent
appropriate, children with disabilities are educated with children who
are not disabled. Further, Sec. 300.116 ensures that a child's parent
is included in the group of persons making the decision about the
child's placement.
Changes: None.
Comment: A number of comments were received regarding Sec.
300.114(a)(2)(ii), which requires each public agency to ensure that the
removal of children with disabilities from the regular educational
environment occurs only when the nature or severity of the disability
is such that the education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily. Many
commenters recommended replacing ``regular educational environment''
with ``regular classroom'' because ``regular classroom'' is less likely
to be misinterpreted to mean any kind of contact with children without
disabilities. A few commenters expressed concern that using the phrase
``regular educational environment'' weakens the LRE protections.
Another commenter recommended the regulations clarify that the
``regular educational environment'' means the participation of children
with disabilities with their nondisabled peers in regular classrooms
and other educational settings including nonacademic settings.
Discussion: Section 300.114(a)(2)(ii) follows the specific language
in section 612(a)(5)(A) of the Act and reflects previous regulatory
language. This requirement is longstanding. We do not believe the
language should be revised, as recommended by the commenters, because
``regular educational environment'' encompasses regular classrooms and
other settings in schools such as lunchrooms and playgrounds in which
children without disabilities participate.
Changes: None.
Comment: One commenter requested revising Sec. 300.114(a)(2) to
require a public agency to document and justify placements of children
with disabilities in environments outside the general education
classroom.
Discussion: The additional language requested by the commenter is
not necessary and would impose unwarranted paperwork burdens on
schools. Section 300.320(a)(5), consistent with section
614(d)(1)(A)(i)(V) of the Act, already requires a child's IEP to
include an explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class. As
noted previously, parents are a part of the group making placement
decisions. We believe these provisions provide sufficient safeguards on
the placement process.
Changes: None.
Comment: One commenter stated that the LRE requirements are often
misinterpreted to be a mandate to include all children who are deaf or
hard of hearing in their local schools. The commenter stated that the
placement decision for a child who is deaf or hard of hearing should be
based on the child's communication needs and must be the environment
that presents the fewest language and communication barriers to the
child's cognitive, social, and emotional development. Some commenters
cautioned that inclusive settings might be inappropriate for a child
who is deaf and who requires communication support and stated that the
LRE should be the place where a child can be educated successfully. A
few commenters requested the regulations clarify that all placement
options must remain available for children who are deaf.
One commenter recommended strengthening the requirement for a
continuum of alternative placements and stated that a full range of
placement options is necessary to meet the needs of all children with
visual impairments. Another commenter urged the Department to ensure
that children with low-incidence disabilities (including children who
are deaf, hard of hearing, or deaf-blind) have access to appropriate
educational programming and services at all times, including center-
based schools, which may be the most appropriate setting for children
with low-incidence disabilities.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.117 express a strong preference, not a mandate, for educating
children with disabilities in regular classes alongside their peers
without disabilities. Section 300.114(a)(2), consistent with section
612(a)(5)(A) of the Act, requires that, to the maximum extent
appropriate, children with disabilities are educated with children who
are not disabled, and that special classes, separate schooling, or
other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the
disability is such that education in regular classes with the use of
supplementary aids and
[[Page 46586]]
services cannot be achieved satisfactorily.
With respect to the recommendation that the placement for children
who are deaf or hard of hearing be based on the child's communication
needs, Sec. 300.324(a)(2)(iv), consistent with section
614(d)(3)(B)(iv) of the Act, clarifies that the IEP Team, in developing
the IEP for a child who is deaf or hard of hearing, must consider the
child's language and communication needs, opportunities for direct
communication with peers and professional personnel in the child's
language and communication mode, and the child's academic level and
full range of needs, including opportunities for direct instruction in
the child's language and communication mode.
With respect to strengthening the continuum of alternative
placement requirements, nothing in the LRE requirements would prevent
an IEP Team from making a determination that placement in the local
school is not appropriate for a particular child. Section 300.115
already requires each public agency to ensure that a continuum of
alternative placements is available to meet the needs of children with
disabilities for special education and related services. We believe
this adequately addresses the commenter's concern.
The process for determining the educational placement for children
with low-incidence disabilities (including children who are deaf, hard
of hearing, or deaf-blind) is the same process used for determining the
educational placement for all children with disabilities. That is, each
child's educational placement must be determined on an individual case-
by-case basis depending on each child's unique educational needs and
circumstances, rather than by the child's category of disability, and
must be based on the child's IEP. We believe the LRE provisions are
sufficient to ensure that public agencies provide low-incidence
children with disabilities access to appropriate educational
programming and services in the educational setting appropriate to meet
the needs of the child in the LRE.
Changes: None.
Comment: One commenter requested that the regulations clarify that
children with disabilities who are suspended or expelled from school
are entitled to be educated with children who are not disabled. The
commenter stated that this clarification is necessary to reduce the use
of home instruction as a placement option for these children.
Discussion: The Act does not require that children with
disabilities suspended or expelled for disciplinary reasons continue to
be educated with children who are not disabled during the period of
their removal. We believe it is important to ensure that children with
disabilities who are suspended or expelled from school receive
appropriate services, while preserving the flexibility of school
personnel to remove a child from school, when necessary, and to
determine how best to address the child's needs during periods of
removal and where services are to be provided to the child during such
periods of removals, including, if appropriate, home instruction.
Sections 300.530 through 300.536 address the options available to
school authorities in disciplining children with disabilities and set
forth procedures that must be followed when taking disciplinary actions
and in making decisions regarding the educational services that a child
will receive and the location in which services will be provided. We
believe including the language recommended by the commenter would
adversely restrict the options available to school personnel for
disciplining children with disabilities and inadvertently tie the hands
of school personnel in responding quickly and effectively to serious
child behaviors and in creating safe classrooms for all children.
Changes: None.
Additional Requirement--State Funding Mechanism (Sec. 300.114(b))
Comment: One commenter stated that Sec. 300.114(b) does not
adequately address the requirements for funding mechanisms relative to
the LRE requirements and requested that note 89 of the Conf. Rpt. be
included in the regulations.
Discussion: Section 300.114(b) incorporates the language from
section 612(a)(5)(B) of the Act and prohibits States from maintaining
funding mechanisms that violate the LRE provisions. We do not believe
it is necessary to provide additional clarification in the regulations.
While we agree with the commenter that note 89 of the Conf. Rpt. makes
clear Congress' intent that State funding mechanisms support the LRE
requirements and do not provide an incentive or disincentive for
certain placement decisions, we believe the requirements in Sec.
300.114(b) accurately capture the essence of the Conf. Rpt. and
including additional language in this paragraph is not needed.
Changes: None.
Comment: One commenter urged the Department to impose financial
sanctions on States that continue to base their funding on certain
placement decisions. A few commenters suggested changing the
requirement in Sec. 300.114(b)(2) for States to provide an assurance
that the State will revise its funding mechanism ``as soon as
feasible'' to ``no later than the start of the 2006-2007 school year.''
Discussion: Section 300.114(b)(2) incorporates the language in
section 612(a)(5)(B)(ii) of the Act, and requires that if a State does
not have policies and procedures to ensure that the State's funding
mechanism does not violate the LRE requirements, the State must provide
the Secretary an assurance that the State will revise its funding
mechanism as soon as feasible. We do not believe it is necessary to
include in these regulations a specific timeline for a State to revise
its funding mechanism, if required to do so pursuant to 300.114(b)(2).
We believe the statutory language ``as soon as feasible,'' while
providing flexibility as to how each State meets the requirement, is
sufficient to ensure States' compliance with this requirement.
Further, we believe the enforcement options in Sec. 300.604 give
the Secretary sufficient means to address a State's noncompliance with
the requirements in Sec. 300.114(b)(2). Section 300.604 describes the
enforcement options available to the Secretary if the Secretary
determines that a State needs assistance or intervention implementing
the requirements of Part B of the Act, or that there is a substantial
failure to comply with any condition of an SEA's or LEA's eligibility
under Part B of the Act. Enforcement options available to the Secretary
include, among others, recovery of funds or withholding, in whole or in
part, any further payments to the State under Part B of the Act.
Changes: None.
Continuum of Alternative Placements (Sec. 300.115)
Comment: One commenter recommended revising Sec. 300.115 so that
only the specific allowable alternative settings listed in the
definition of special education in new Sec. 300.39 (proposed Sec.
300.38) (i.e., classroom, home, hospitals, institutions) are permitted.
Discussion: Section 300.115 requires each public agency to ensure
that a continuum of alternative placements (including instruction in
regular classes, special classes, special schools, home instruction,
and instruction in hospitals and institutions) is available to meet the
needs of children with disabilities for special education and related
services. The list of placement options in this section only expands
the settings
[[Page 46587]]
mentioned in new Sec. 300.39 (proposed Sec. 300.38) by recognizing
the various types of classrooms and settings for classrooms in which
special education is provided. This continuum of alternative placements
is intended to ensure that a child with a disability is served in a
setting where the child can be educated successfully in the LRE.
Changes: None.
Comment: One commenter suggested adding language to the regulations
to clarify that difficulty recruiting and hiring qualified special
education teachers does not relieve an LEA of its obligation to ensure
a continuum of alternative placements and to offer a full range of
services to meet the needs of children with disabilities.
Discussion: We do not believe it is necessary to include the
language suggested by the commenter, because Sec. 300.116 is
sufficiently clear that placement decisions must be based on the
individual needs of each child with a disability. Public agencies,
therefore, must not make placement decisions based on a public agency's
needs or available resources, including budgetary considerations and
the ability of the public agency to hire and recruit qualified staff.
Changes: None.
Comment: A few commenters recommended revising Sec. 300.115(a) to
clarify that the continuum of alternative placements must be available
to eligible preschool children with disabilities.
Discussion: It is not necessary to revise Sec. 300.115(a) in the
manner suggested by the commenters. Section 300.116 clearly states that
the requirements for determining the educational placement of a child
with a disability include preschool children with disabilities and that
such decisions must be made in conformity with the LRE provisions in
Sec. Sec. 300.114 through 300.118. This includes ensuring that a
continuum of services is available to meet the needs of children with
disabilities for special education and related services.
Changes: None.
Placements (Sec. 300.116)
Comment: One commenter recommended the regulations clarify that the
regular class must always be considered the first placement option.
Discussion: We do not believe it is necessary to include the
clarification recommended by the commenter. Section 300.116 clarifies
that placement decisions must be made in conformity with the LRE
provisions, and Sec. 300.114(a)(2) already requires that special
classes, separate schooling or other removal of children with
disabilities from the regular education environment only occurs if the
nature or severity of the disability is such that education in regular
classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
Changes: None.
Comment: A few commenters recommended revising Sec. 300.116 to
require that children with disabilities have access to, and make
progress in, the general curriculum, and that children receive the
special education and related services included in their IEPs.
Discussion: The issues raised by the commenters are already
addressed elsewhere in the regulations. The IEP requirements in Sec.
300.320(a), consistent with section 614(d) of the Act, clarify that
children with disabilities must be provided special education and
related services and needed supplementary aids and services to enable
them to be involved in and make progress in the general curriculum. In
addition, Sec. 300.323(c)(2) requires that, as soon as possible
following the development of an IEP, special education and related
services are made available to the child in accordance with the child's
IEP. We believe that these regulations adequately address the
commenters' concerns, and that no further clarification is necessary.
Changes: None.
Comment: One commenter stated that the placement requirements in
Sec. 300.116 encourage school districts to assign a child with a
disability to a particular place or setting, rather than providing a
continuum of increasingly individualized and intensive services. The
commenter suggested requiring that the continuum of alternative
placements include a progressively more intensive level of
individualized, scientifically based instruction and related services,
both with increased time and lower pupil-teacher ratio, in addition to
regular instruction with supplementary aids and services.
Discussion: The overriding rule in Sec. 300.116 is that placement
decisions for all children with disabilities must be made on an
individual basis and ensure that each child with a disability is
educated in the school the child would attend if not disabled unless
the child's IEP requires some other arrangement. However, the Act does
not require that every child with a disability be placed in the regular
classroom regardless of individual abilities and needs. This
recognition that regular class placement may not be appropriate for
every child with a disability is reflected in the requirement that LEAs
make available a range of placement options, known as a continuum of
alternative placements, to meet the unique educational needs of
children with disabilities. This requirement for the continuum
reinforces the importance of the individualized inquiry, not a ``one
size fits all'' approach, in determining what placement is the LRE for
each child with a disability. The options on this continuum must
include the alternative placements listed in the definition of special
education under Sec. 300.38 (instruction in regular classes, special
classes, special schools, home instruction, and instruction in
hospitals and institutions). These options must be available to the
extent necessary to implement the IEP of each child with a disability.
The group determining the placement must select the placement option on
the continuum in which it determines that the child's IEP can be
implemented in the LRE. Any alternative placement selected for the
child outside of the regular educational environment must include
appropriate opportunities for the child to interact with nondisabled
peers, to the extent appropriate to the needs of the children,
consistent with Sec. 300.114(a)(2)(i).
Because placement decisions must be determined on an individual
case-by-case basis depending on each child's unique educational needs
and circumstances and based on the child's IEP, we do not believe it is
appropriate to require in the regulations that the continuum of
alternative placements include a progressively more intensive level of
individualized scientifically based instruction and related services as
suggested by the commenter.
Changes: None.
Comment: We received a number of comments regarding the phrase,
``unless the parent agrees otherwise'' in proposed Sec. 300.116(b)(3)
and (c). As proposed, Sec. 300.116(b)(3) requires the child's
placement to be as close as possible to the child's home, ``unless the
parent agrees otherwise;'' and Sec. 300.116(c) requires that, unless
the child's IEP requires some other arrangement, the child must be
educated in the school that he or she would attend if nondisabled,
``unless the parent agrees otherwise.'' Many commenters requested
removing the phrase ``unless the parent agrees otherwise,'' because it
is not included in section 612(a)(5) of the Act and is not necessary to
clarify that a parent may place his or her child in a charter, magnet,
or other specialized school without violating the LRE requirements.
Other commenters suggested removing the phrase and clarifying that a
decision by the child's parent to send the child to a charter, magnet,
or other specialized
[[Page 46588]]
school is not a violation of the LRE requirements.
Several commenters stated that including the phrase undermines the
statutory requirement for children with disabilities to be placed in
the LRE based on their IEPs and allows more restrictive placements
based on parental choice. Many commenters interpreted this phrase to
mean that placement is a matter of parental choice even in public
school settings and stated that a child's LRE rights should not be
overridden by parental choice. One commenter stated that the phrase
might intimidate parents into accepting inappropriate placements.
A few commenters stated that this phrase is unnecessary because the
Act already requires parents to be involved in placement decisions, and
expressed concern that including this phrase in the regulations could
lead to confusion and litigation. One commenter stated that the phrase
suggests that additional consent is required if the parent chooses to
send the child to a charter, magnet, or other specialized school.
Discussion: The phrase ``unless the parent agrees otherwise'' in
proposed Sec. 300.116(b)(3) and (c) was added to clarify that a parent
may send the child to a charter, magnet, or other specialized school
without violating the LRE mandate. A parent has always had this option;
a parent who chooses this option for the child does not violate the LRE
mandate as long as the child is educated with his or her peers without
disabilities to the maximum extent appropriate. However, we agree that
this phrase is unnecessary, confusing, and may be misunderstood to mean
that parents have a right to veto the placement decision made by the
group of individuals in Sec. 300.116(a)(1). We will, therefore, remove
the phrase.
Changes: We have removed the phrase ``unless the parent agrees
otherwise'' in Sec. 300.116(b)(3) and (c).
Comment: One commenter disagreed with the requirement in Sec.
300.116(b)(3) that placements be as close as possible to the child's
home, stating that the requirement is administratively prohibitive and
beyond the scope of the Act. The commenter stated that it is not
possible for school districts to provide classes for children with all
types and degrees of disabilities in each school building. The
commenter stated that ``placement'' should be understood as the set of
services outlined in a child's IEP, and recommended that school
districts be permitted to provide these services in the school building
that is most administratively feasible.
Discussion: We do not believe the requirement imposes unduly
restrictive administrative requirements. The Department has
consistently maintained that a child with a disability should be
educated in a school as close to the child's home as possible, unless
the services identified in the child's IEP require a different
location. Even though the Act does not mandate that a child with a
disability be educated in the school he or she would normally attend if
not disabled, section 612(a)(5)(A) of the Act presumes that the first
placement option considered for each child with a disability is the
regular classroom in the school that the child would attend if not
disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a child with a disability can
be placed outside of the regular educational environment, the full
range of supplementary aids and services that could be provided to
facilitate the child's placement in the regular classroom setting must
be considered. Following that consideration, if a determination is made
that a particular child with a disability cannot be educated
satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, that child
could be placed in a setting other than the regular classroom.
Although the Act does not require that each school building in an
LEA be able to provide all the special education and related services
for all types and severities of disabilities, the LEA has an obligation
to make available a full continuum of alternative placement options
that maximize opportunities for its children with disabilities to be
educated with nondisabled peers to the extent appropriate. In all
cases, placement decisions must be individually determined on the basis
of each child's abilities and needs and each child's IEP, and not
solely on factors such as category of disability, severity of
disability, availability of special education and related services,
configuration of the service delivery system, availability of space, or
administrative convenience.
Changes: None.
Comment: One commenter requested clarifying the difference, if any,
between ``placement'' and ``location.'' One commenter recommended
requiring the child's IEP to include a detailed explanation of why a
child's educational needs cannot be met in the location requested by
the parent when the school district opposes the parent's request for
services to be provided to the child in the school that the child would
attend if the child did not have a disability.
Discussion: Historically, we have referred to ``placement'' as
points along the continuum of placement options available for a child
with a disability, and ``location'' as the physical surrounding, such
as the classroom, in which a child with a disability receives special
education and related services. Public agencies are strongly encouraged
to place a child with a disability in the school and classroom the
child would attend if the child did not have a disability. However, a
public agency may have two or more equally appropriate locations that
meet the child's special education and related services needs and
school administrators should have the flexibility to assign the child
to a particular school or classroom, provided that determination is
consistent with the decision of the group determining placement. It
also should be noted that, under section 615(b)(3) of the Act, a parent
must be given written prior notice that meets the requirements of Sec.
300.503 a reasonable time before a public agency implements a proposal
or refusal to initiate or change the identification, evaluation, or
educational placement of the child, or the provision of FAPE to the
child. Consistent with this notice requirement, parents of children
with disabilities must be informed that the public agency is required
to have a full continuum of placement options, as well as about the
placement options that were actually considered and the reasons why
those options were rejected. While public agencies have an obligation
under the Act to notify parents regarding placement decisions, there is
nothing in the Act that requires a detailed explanation in children's
IEPs of why their educational needs or educational placements cannot be
met in the location the parents' request. We believe including such a
provision would be overly burdensome for school administrators and
diminish their flexibility to appropriately assign a child to a
particular school or classroom, provided that the assignment is made
consistent with the child's IEP and the decision of the group
determining placement.
Changes: None.
Comment: One commenter recommended including in the regulations the
Department's policy that a child's placement in an educational program
that is substantially and materially similar to the former placement is
not a change in placement.
Discussion: As stated by the commenter, it is the Department's
longstanding position that maintaining a child's placement in an
educational
[[Continued on page 46589]]
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Disabilities and Preschool Grants for Children With Disabilities
[[Continued from page 46588]]
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program that is substantially and materially similar to the former
placement is not a change in placement. We do not believe further
clarification is necessary in the regulations, however, as the
distinction seems to be commonly accepted and understood.
Changes: None.
Comment: Many commenters suggested requiring a public agency to pay
all costs associated with providing FAPE for a child in a private
preschool, including paying for tuition, transportation and such
special education, related services and supplementary aids and services
as the child needs, if an inclusive preschool is the appropriate
placement for a child, and there is no inclusive public preschool that
can provide all the appropriate services and supports.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.118 apply to all children with disabilities, including preschool
children who are entitled to FAPE. Public agencies that do not operate
programs for preschool children without disabilities are not required
to initiate those programs solely to satisfy the LRE requirements of
the Act. Public agencies that do not have an inclusive public preschool
that can provide all the appropriate services and supports must explore
alternative methods to ensure that the LRE requirements are met.
Examples of such alternative methods might include placement options in
private preschool programs or other community-based settings. Paying
for the placement of qualified preschool children with disabilities in
a private preschool with children without disabilities is one, but not
the only, option available to public agencies to meet the LRE
requirements. We believe the regulations should allow public agencies
to choose an appropriate option to meet the LRE requirements. However,
if a public agency determines that placement in a private preschool
program is necessary as a means of providing special education and
related services to a child with a disability, the program must be at
no cost to the parent of the child.
Changes: None.
Comment: One commenter suggested clarifying that if a child's
behavior in the regular classroom significantly impairs the learning of
the child or others, that placement would not meet the child's needs
and would not be appropriate for that child.
Discussion: Although the Act places a strong preference in favor of
educating children with disabilities in the regular classroom with
appropriate aids and supports, a regular classroom placement is not
appropriate for every child with a disability. Placement decisions are
made on a case-by-case basis and must be appropriate for the needs of
the child. The courts have generally concluded that, if a child with a
disability has behavioral problems that are so disruptive in a regular
classroom that the education of other children is significantly
impaired, the needs of the child with a disability generally cannot be
met in that environment. However, before making such a determination,
LEAs must ensure that consideration has been given to the full range of
supplementary aids and services that could be provided to the child in
the regular educational environment to accommodate the unique needs of
the child with a disability. If the group making the placement decision
determines, that even with the provision of supplementary aids and
services, the child's IEP could not be implemented satisfactorily in
the regular educational environment, that placement would not be the
LRE placement for that child at that particular time, because her or
his unique educational needs could not be met in that setting. (See
Roncker v. Walter, 700 F. 2d 1058 (6th Cir. 1983); Devries v. Fairfax
County School Bd., 882 F. 2d 876, 879 (4th Cir. 1989); Daniel R.R. v.
State Bd. of Educ., 874 F. 2d 1036 (5th Cir. 1989); and A.W. v.
Northwest R-1 School Dist., 813 F.2d 158, 163 (8th Cir. 1987).)
Changes: None.
Nonacademic Settings (Sec. 300.117)
Comment: One commenter requested that the regulations clarify that
children with disabilities should receive the supplementary aids and
services necessary to ensure their participation in nonacademic and
extracurricular services and activities.
Discussion: Section 300.117, consistent with section 612(a)(5) of
the Act, requires that children with disabilities participate in
nonacademic and extracurricular services and activities with their
nondisabled peers to the maximum extent appropriate to the needs of the
child. The Act places great emphasis on ensuring that children with
disabilities are educated, to the maximum extent appropriate, with
children who are nondisabled and are included in nonacademic and
extracurricular services and activities as appropriate to the needs of
the child. We believe the public agency has an obligation to provide a
child with a disability with appropriate aids, services, and other
supports, as determined by the IEP Team, if necessary to ensure the
child's participation in nonacademic and extracurricular services and
activities. Therefore, we will clarify in Sec. 300.117 that each
public agency must ensure that children with disabilities have the
supplementary aids and services determined necessary by the child's IEP
Team for the child to participate in nonacademic and extracurricular
services and activities to the maximum extent appropriate to the needs
of that child.
Changes: We have added language to Sec. 300.117 to ensure that
children with disabilities receive the supplementary aids and services
needed to participate in nonacademic and extracurricular services and
activities.
Technical Assistance and Training Activities (Sec. 300.119)
Comment: One commenter requested that the regulations define
``training.''
Discussion: The Department intends the term ``training,'' as used
in Sec. 300.119, to have its generally accepted meaning. Training is
generally agreed to be any activity used to enhance one's skill or
knowledge to acquire, maintain, and advance knowledge, skills, and
abilities. Given the general understanding of the term ``training,'' we
do not believe it is necessary to regulate on this matter.
Changes: None.
Children in Private Schools
Children With Disabilities Enrolled by Their Parents in Private Schools
General Comments
Comment: Many comments were received regarding the parentally-
placed private school children with disabilities requirements in
Sec. Sec. 300.130 through 300.144. Many commenters supported the
changes to the regulations and believed the regulations simplify the
processes for both private schools and public schools. Numerous
commenters, however, expressed concern regarding the implementation of
the private school requirements.
Many of the commenters expressed concern with the requirement that
the LEAs where private elementary schools and secondary schools are
located are now responsible for child find, individual evaluations, and
the provision of services for children with disabilities enrolled by
their parents in private schools located in the LEA. These commenters
described the private school provisions in the Act and the NPRM as
burdensome and difficult to understand.
Discussion: The revisions to the Act in 2004 significantly changed
the obligation of States and LEAs to children with disabilities
enrolled by their parents in private elementary
[[Page 46590]]
schools and secondary schools. Section 612(a)(10)(A) of the Act now
requires LEAs in which the private schools are located, rather than the
LEAs in which the parents of such children reside, to conduct child
find and provide equitable services to parentally-placed private school
children with disabilities.
The Act provides that, in calculating the proportionate amount of
Federal funds under Part B of the Act that must be spent on parentally-
placed private school children with disabilities, the LEAs where the
private schools are located, after timely and meaningful consultation
with representatives of private elementary schools and secondary
schools and representatives of parents of parentally-placed private
school children with disabilities, must conduct a thorough and complete
child find process to determine the number of parentally-placed
children with disabilities attending private elementary schools and
secondary schools located in the LEAs. In addition, the obligation of
the LEA to spend a proportionate amount of funds to provide services to
children with disabilities enrolled by their parents in private schools
is now based on the total number of children with disabilities who are
enrolled in private schools located in the LEA whether or not the
children and their parents reside in the LEA.
We believe these regulations and the additional clarification
provided in our responses to comments on Sec. Sec. 300.130 through
300.144 will help States and LEAs to better understand their
obligations in serving children with disabilities placed by their
parents in private elementary schools and secondary schools. In
addition, the Department has provided additional guidance on
implementing the parentally-placed private school requirements on the
Department's Web site. We also are including in these regulations
Appendix B to Part 300--Proportionate Share Calculation to assist LEAs
in calculating the proportionate amount of Part B funds that they must
expend on parentally-placed private school children with disabilities
attending private elementary schools and secondary schools located in
the LEA.
Changes: We have added a reference to Appendix B in Sec.
300.133(b).
Comment: Several commenters expressed concern that Sec. Sec.
300.130 through 300.144 include requirements that go beyond the Act and
recommended that any requirement beyond what is statutory be removed
from these regulations.
Discussion: In general, the regulations track the language in
section 612(a)(10)(A) of the Act regarding children enrolled in private
schools by their parents. However, we determined that including
clarification of the statutory language on parentally-placed private
school children with disabilities in these regulations would be
helpful. The volume of comments received concerning this topic confirm
the need to regulate in order to clarify the statutory language and to
help ensure compliance with the requirements of the Act.
Changes: None.
Comment: Some commenters requested that the regulations provide
flexibility to States to provide services to parentally-placed private
school children with disabilities beyond what they would be able to do
with the proportionate share required under the Act. A few of these
commenters requested that those States already providing an individual
entitlement to special education and related services or providing a
full range of special education services to parentally-placed private
school children be deemed to have met the requirements in Sec. Sec.
300.130 through 300.144 and be permitted to continue the State's
current practices. One commenter specifically recommended allowing
States that provide additional rights or services to parentally-placed
private school children with disabilities (including FAPE under section
612 of the Act and the procedural safeguards under section 615 of the
Act), the option of requesting that the Secretary consider alternate
compliance with these requirements that would include evidence and
supporting documentation of alternate procedures under State law to
meet all the requirements in Sec. Sec. 300.130 through 300.144.
A few commenters requested that the child find and equitable
participation requirements should not apply in States with dual
enrollment provisions where children with disabilities who are
parentally-placed in private elementary schools or secondary schools
are also enrolled in public schools for special education and have IEPs
and retain their due process rights.
Discussion: The Act in no way prohibits States or LEAs from
spending additional State or local funds to provide special education
or related services for parentally-placed private school children with
disabilities in excess of those required in Sec. 300.133 and section
612(a)(10)(A) of the Act, consistent with State law or administrative
procedures. The Act, however, does not provide the Secretary with the
authority to waive, in whole or in part, the parentally-placed private
school requirements in Sec. Sec. 300.130 through 300.144 for States or
LEAs that spend State or local funds to provide special education or
related services beyond those required under Part B of the Act. The
Secretary, therefore, cannot consider alternative compliance with the
parentally-placed private school provisions in the Act and these
regulations or consider States and LEAs that use State and local funds
to provide services to parentally-placed private school children with
disabilities beyond the required proportionate share of Federal Part B
funds, including providing FAPE to such children, to have met the
statutory and regulatory requirements governing parentally-placed
private school children with disabilities. States and LEAs must meet
the requirements in the Act and these regulations.
With regard to the comment requesting that the child find and
equitable participation requirements for parentally-placed private
school children with disabilities not apply in States with dual
enrollment, there is no exception in the Act to the child find and
equitable participation requirements of section 612(a)(10)(A) for
States that permit dual enrollment of a child at a parent's discretion.
Therefore, there is no basis to regulate to provide such an exception.
It would be a matter of State or local discretion to decide whether to
have a dual enrollment policy and, if established, how it would be
implemented. Whether dual enrollment alters the rights of parentally-
placed private school children with disabilities under State law is a
State matter. There is nothing, however, in Part B of the Act that
would prohibit a State from requiring dual enrollment as a condition
for a parentally-placed private school child with a disability to be
eligible for services from a public agency. As long as States and LEAs
meet the requirements in Sec. Sec. 300.130 through 300.144, the local
policy covering enrollment is a matter of State and local discretion.
Changes: None.
Comment: Several commenters expressed concern regarding the
applicability of the child find and equitable participation
requirements in Sec. Sec. 300.130 through 300.144 for children with
disabilities who reside in one State and are enrolled by their parents
in private elementary schools or secondary schools located in another
State. These commenters recommended that the regulations clarify
whether the LEA in the State where the private elementary school or
secondary school is located or the LEA in the State where the child
[[Page 46591]]
resides is responsible for conducting child find (including individual
evaluations and reevaluations), and providing and paying for equitable
services for children who are enrolled by their parents in private
elementary schools or secondary schools.
Discussion: Section 612(a)(10)(A)(i)(II) of the Act provides that
the LEA where the private elementary schools and secondary schools are
located, after timely and meaningful consultation with private school
representatives, is responsible for conducting the child find process
to determine the number of parentally-placed children with disabilities
attending private schools located in the LEA. We believe this
responsibility includes child find for children who reside in other
States but who attend private elementary schools and secondary schools
located in the LEA, because section 612(a)(10)(A)(i)(II) of the Act is
clear about which LEA is responsible for child find and the Act does
not provide an exception for children who reside in one State and
attend private elementary schools and secondary schools in other
States.
Under section 612(a)(10)(A)(i) of the Act, the LEA where the
private elementary schools and secondary schools are located, in
consultation with private school officials and representatives of
parents of parentally-placed private school children with disabilities,
also is responsible for determining and paying for the services to be
provided to parentally-placed private school children with
disabilities. We believe this responsibility extends to children from
other States who are enrolled in a private school located in the LEA,
because section 612(a)(10)(A)(i) of the Act clarifies that the LEA
where the private schools are located is responsible for spending a
proportionate amount of its Federal Part B funds on special education
and related services for children enrolled by their parents in the
private schools located in the LEA. The Act does not provide an
exception for out-of-State children with disabilities attending a
private school located in the LEA and, therefore, out-of-State children
with disabilities must be included in the group of parentally-placed
children with disabilities whose needs are considered in determining
which parentally-placed private school children with disabilities will
be served and the types and amounts of services to be provided.
Changes: We have added a new paragraph (f) to Sec. 300.131
clarifying that each LEA where private, including religious, elementary
schools and secondary schools are located must, in carrying out the
child find requirements in this section, include parentally-placed
private school children who reside in the State other than where the
private schools they attend are located.
Comment: A few commenters recommended the regulations clarify the
LEA's obligation under Sec. Sec. 300.130 through 300.144 regarding
child find and equitable participation for children from other
countries enrolled in private elementary schools and secondary schools
by their parents.
Discussion: The obligation to consider children with disabilities
for equitable services extends to all children with disabilities in the
State who are enrolled by their parents in private schools within each
LEA's jurisdiction.
Changes: None.
Comment: Several commenters recommended the regulations clarify the
applicability of the child find and equitable participation
requirements in Sec. Sec. 300.130 through 300.144 for children with
disabilities, aged three through five, enrolled by their parents in
private preschools or day care programs. Many commenters recommended
the regulations clarify that preschool children with disabilities
should be counted in determining the proportionate share of funds
available to serve children enrolled in private elementary schools by
their parents.
Discussion: If a private preschool or day care program is
considered an elementary school, as defined in Sec. 300.13, the child
find and equitable services participation requirements in Sec. Sec.
300.130 through 300.144, consistent with section 612(a)(10) of the Act,
apply to children with disabilities aged three through five enrolled by
their parents in such programs. Section 300.13, consistent with section
602(6) of the Act, defines an elementary school as a nonprofit
institutional day or residential school, including a public elementary
charter school, which provides elementary education, as determined
under State law. We believe it is important to clarify in the
regulations that children aged three through five are considered
parentally-placed private school children with disabilities enrolled in
private elementary schools only if they are enrolled in private schools
that meet the definition of elementary school in Sec. 300.13.
Changes: We have added a new Sec. 300.133(a)(2)(ii) to clarify
that children aged three through five are considered to be parentally-
placed private school children with disabilities enrolled by their
parents in private, including religious, elementary schools, if they
are enrolled in a private school that meets the definition of
elementary school in Sec. 300.13.
Definition of Parentally-Placed Private School Children With
Disabilities (Sec. 300.130)
Comment: A few commenters recommended removing ``or facilities''
from the definition of parentally-placed private school children
because it is not defined in the Act or the regulations. Another
commenter recommended including a definition of ``facilities.''
Discussion: Under section 612(a)(10)(A) of the Act, the obligation
to conduct child find and provide equitable services extends to
children who are enrolled by their parents in private elementary
schools and secondary schools. This obligation also applies to children
who have been enrolled by their parents in private facilities if those
facilities are elementary schools or secondary schools, as defined in
subpart A of the regulations. Because facilities that meet the
definition of elementary school or secondary school are covered under
this section, we believe it is important to retain the reference to
facilities in these regulations. We will, however, revise Sec. 300.130
to clarify that children with disabilities who are enrolled by their
parents in facilities that meet the definition of elementary school in
Sec. 300.13 or secondary school in new Sec. 300.36 (proposed Sec.
300.35) would be considered parentally-placed private school children
with disabilities.
Changes: Section 300.130 has been revised to clarify that
parentally-placed private school children with disabilities means
children with disabilities enrolled by their parents in private,
including religious, schools or facilities that meet the definition of
an elementary school in Sec. 300.13 or secondary school in Sec.
300.36.
Child Find for Parentally-Placed Private School Children With
Disabilities (Sec. 300.131)
Comment: A few commenters recommended permitting the LEA where
private schools are located to request reimbursement from the LEA where
the child resides for the cost of conducting an individual evaluation,
as may be required under the child find requirements in Sec. 300.131.
One commenter recommended that the LEA where private schools are
located be responsible for locating and identifying children with
disabilities enrolled by their parents in private schools and the LEA
where the children reside be responsible for conducting individual
evaluations.
[[Page 46592]]
Discussion: Section 300.131, consistent with section
612(a)(10)(A)(i) of the Act, requires that the LEA where private
elementary schools and secondary schools in which the child is enrolled
are located, not the LEA where the child resides, is responsible for
conducting child find, including an individual evaluation for a child
with a disability enrolled by the child's parent in a private
elementary school or secondary school located in the LEA. The Act
specifies that the LEA where the private schools are located is
responsible for conducting both the child find process and the initial
evaluation. Therefore, the LEA where private schools are located may
not seek reimbursement from the LEA of residence for the cost of
conducting the evaluation or to request that the LEA of residence
conduct the evaluation. However, the LEA where the private elementary
school or secondary school is located has options as to how it meets
its responsibilities. For example, the LEA may assume the
responsibility itself, contract with another public agency (including
the public agency of residence), or make other arrangements.
Changes: None.
Comment: One commenter recommended permitting a parent who enrolled
a child in a private elementary school or secondary school the option
of not participating in child find required under Sec. 300.131.
Discussion: New Sec. 300.300(e)(4) clarifies that parents who
enroll their children in private elementary schools and secondary
schools have the option of not participating in an LEA's child find
activities required under Sec. 300.131. As noted in the Analysis of
Comments and Changes section for subpart D, once parents opt out of the
public schools, States and school districts do not have the same
interest in requiring parents to agree to the evaluation of their
children as they do for children enrolled in public schools, in light
of the public agencies' obligation to educate public school children
with disabilities. We further indicate in the discussion of subpart D
that we have added new Sec. 300.300(e)(4) (proposed Sec. 300.300(d))
to clarify that if the parent of a child who is home schooled or placed
in a private school by the child's parent at the parent's own expense
does not provide consent for an initial evaluation or reevaluation, the
public agency may not use the due process procedures in section 615 of
the Act and the public agency is not required to consider the child for
equitable services.
Changes: None.
Comment: Several commenters recommended permitting amounts expended
for child find, including individual evaluations, to be deducted from
the required amount of funds to be expended on equitable services for
parentally-placed private school children with disabilities.
Discussion: The requested changes would be inconsistent with the
Act. There is a distinction under the Act between the obligation to
conduct child find activities, including individual evaluations, for
parentally-placed private school children with disabilities, and the
obligation to use an amount of funds equal to a proportionate amount of
the Federal Part B grant flowing to LEAs to provide special education
and related services to parentally-placed private school children with
disabilities. The obligation to conduct child find for parentally-
placed private school children, including individual evaluations, is
independent of the services provision. Further, Sec. 300.131(d),
consistent with section 612(a)(10)(A)(ii)(IV) of the Act, clarifies
that the costs of child find activities for parentally-placed private
school children, including individual evaluations, may not be
considered in determining whether the LEA has spent an appropriate
amount on providing special education and related services to
parentally-placed private school children with disabilities.
Changes: None.
Comment: One commenter requested clarifying whether an LEA may
exclude children suspected of having certain disabilities, such as
those with specific learning disabilities, in conducting individual
evaluations of suspected children with disabilities enrolled in private
schools by their parents.
Discussion: The LEA where the private elementary schools and
secondary schools are located must identify and evaluate all children
suspected of having disabilities as defined under section 602(3) of the
Act. LEAs may not exclude children suspected of having certain
disabilities, such as those with specific learning disabilities, from
their child find activities. The Department recommends that LEAs and
private elementary schools and secondary schools consult on how best to
implement the State's evaluation criteria and the requirements under
this part for identifying children with specific learning disabilities
enrolled in private schools by their parents. This is explained in more
detail in the discussion of comments under Sec. 300.307.
Changes: None.
Comment: A few commenters expressed concern that parents who place
their children in private elementary schools and secondary schools
outside the district of residence, and who are determined by the LEA
where the private schools are located, through its child find process,
to be children with disabilities eligible for special education and
related services, would have no knowledge of the special education and
related services available for their children if they choose to attend
a public school in their district of residence. A few commenters
suggested clarifying the obligation of the LEA where the private school
is located to provide the district of residence the results of an
evaluation and eligibility determination of the parentally-placed
private school child.
A few commenters recommended that the parent of a child with a
disability identified through the child find process in Sec. 300.131
be provided with information regarding an appropriate educational
program for the child.
Discussion: The Act is silent on the obligation of officials of the
LEA where private elementary schools and secondary schools are located
to share personally identifiable information, such as individual
evaluation information, with officials of the LEA of the parent's
residence. We believe that the LEA where the private schools are
located has an obligation to protect the privacy of children placed in
private schools by their parents. We believe that when a parentally-
placed private school child is evaluated and identified as a child with
a disability by the LEA in which the private school is located,
parental consent should be required before such personally identifiable
information is released to officials of the LEA of the parent's
residence. Therefore, we are adding a new paragraph (b)(3) to Sec.
300.622 to make this clear. We explain this revision in more detail in
the discussion of comments under Sec. 300.622.
We believe the regulations adequately ensure that parents of
children enrolled in private schools by their parents, who are
identified as children with disabilities through the child find
process, receive information regarding an appropriate educational
program for their children. Section 300.138(b) provides that each
parentally-placed private school child with a disability who has been
designated to receive equitable services must have a services plan that
describes the specific education and related services that the LEA
where the private school is located has determined it will make
available to the child and the services plan must, to the extent
appropriate, meet the IEP content, development, review and revision
requirements described in
[[Page 46593]]
section 614(d) of the Act, or, when appropriate, for children aged
three through five, the IFSP requirements described in section 636(d)
of the Act as to the services that are to be provided.
Furthermore, the LEA where the private school is located must,
pursuant to Sec. 300.504(a) and section 615(d) of the Act, provide the
parent a copy of the procedural safeguards notice upon conducting the
initial evaluation.
Changes: We have added a new paragraph (b)(3) to Sec. 300.622 to
require parental consent for the disclosure of records of parentally-
placed private school children between LEAs.
Comment: A few commenters stated that Sec. 300.131 does not
address which LEA has the responsibility for reevaluations.
Discussion: The LEA where the private schools are located is
responsible for conducting reevaluations of children with disabilities
enrolled by their parents in private elementary schools and secondary
schools located within the LEA. Reevaluation is a part of the LEA's
child find responsibility for parentally-placed private school children
under section 612(a)(10)(A) of the Act.
Changes: None.
Comment: One commenter expressed concern that the regulations
permit a parent to request an evaluation from the LEA of residence at
the same time the child is being evaluated by the LEA where the private
elementary school or secondary school is located, resulting in two LEAs
simultaneously conducting evaluations of the same child.
Discussion: We recognize that there could be times when parents
request that their parentally-placed child be evaluated by different
LEAs if the child is attending a private school that is not in the LEA
in which they reside. For example, because most States generally
allocate the responsibility for making FAPE available to the LEA in
which the child's parents reside, and that could be a different LEA
from the LEA in which the child's private school is located, parents
could ask two different LEAs to evaluate their child for different
purposes at the same time. Although there is nothing in this part that
would prohibit parents from requesting that their child be evaluated by
the LEA responsible for FAPE for purposes of having a program of FAPE
made available to the child at the same time that the parents have
requested that the LEA where the private school is located evaluate
their child for purposes of considering the child for equitable
services, we do not encourage this practice. We note that new Sec.
300.622(b)(4) requires parental consent for the release of information
about parentally-placed private school children between LEAs;
therefore, as a practical matter, one LEA may not know that a parent
also requested an evaluation from another LEA. However, we do not
believe that the child's best interests would be well-served if the
parents requested evaluations of their child by the resident school
district and the LEA where the private school is located, even though
these evaluations are conducted for different purposes. A practice of
subjecting a child to repeated testing by separate LEAs in close
proximity of time may not be the most effective or desirable way of
ensuring that the evaluation is a meaningful measure of whether a child
has a disability or of providing an appropriate assessment of the
child's educational needs.
Changes: None.
Comment: Some commenters requested the regulations clarify which
LEA (the LEA of residence or the LEA where the private elementary
schools or secondary schools are located) is responsible for offering
FAPE to children identified through child find under Sec. 300.131 so
that parents can make an informed decision regarding their children's
education.
Discussion: If a determination is made by the LEA where the private
school is located that a child needs special education and related
services, the LEA where the child resides is responsible for making
FAPE available to the child. If the parent makes clear his or her
intention to keep the child enrolled in the private elementary school
or secondary school located in another LEA, the LEA where the child
resides need not make FAPE available to the child. We do not believe
that a change to the regulations is necessary, as Sec. 300.201 already
clarifies that the district of residence is responsible for making FAPE
available to the child. Accordingly, the district in which the private
elementary or secondary school is located is not responsible for making
FAPE available to a child residing in another district.
Changes: None.
Comment: One commenter requested clarification of the term
``activities similar'' in Sec. 300.131(c). Another commenter
recommended clarifying that these activities include, but are not
limited to, activities relating to evaluations and reevaluations. One
commenter requested that children with disabilities parentally-placed
in private schools be identified and evaluated as quickly as possible.
Discussion: Section 300.131(c), consistent with section
612(a)(10)(A)(ii)(III) of the Act, requires that, in carrying out child
find for parentally-placed private school children, SEAs and LEAs must
undertake activities similar to those activities undertaken for their
publicly enrolled or publicly-placed children. This would generally
include, but is not limited to, such activities as widely distributing
informational brochures, providing regular public service
announcements, staffing exhibits at health fairs and other community
activities, and creating direct liaisons with private schools.
Activities for child find must be completed in a time period comparable
to those activities for public school children. This means that LEAs
must conduct child find activities, including individual evaluations,
for parentally-placed private school children within a reasonable
period of time and without undue delay, and may not wait until after
child find for public school children is conducted. In addition,
evaluations of all children suspected of having disabilities under Part
B of the Act, regardless of whether they are enrolled by their parents
in private elementary schools or secondary schools, must be conducted
in accordance with the requirements in Sec. Sec. 300.300 through
300.311, consistent with section 614(a) through (c) of the Act, which
describes the procedures for evaluations and reevaluations for all
children with disabilities. We believe the phrase ``activities
similar'' is understood by SEAs and LEAs and, therefore, it is not
necessary to regulate on the meaning of the phrase.
Changes: None.
Provision of Services for Parentally-Placed Private School Children
With Disabilities--Basic Requirement (Sec. 300.132)
Comment: Several commenters expressed confusion regarding which LEA
is responsible for paying for the equitable services provided to a
parentally-placed private elementary school or secondary school child,
the district of the child's residence or the LEA where the private
school is located.
Discussion: We believe Sec. 300.133, consistent with section
612(a)(10)(A) of the Act, is sufficiently clear that the LEA where the
private elementary schools and secondary schools are located is
responsible for paying for the equitable services provided to a
parentally-placed private elementary school or secondary school child.
These provisions provide that the LEA where the private elementary and
secondary schools are located must spend a proportionate amount of its
Federal funds available under Part B of the Act
[[Page 46594]]
for services for children with disabilities enrolled by their parents
in private elementary schools and secondary schools located in the LEA.
The Act does not permit an exception to this requirement. No further
clarification is needed.
Changes: None.
Comment: One commenter recommended the regulations clarify which
LEA in the State is responsible for providing equitable services to
parentally-placed private school children with disabilities who attend
a private school that straddles two LEAs in the State.
Discussion: The Act does not address situations where a private
school straddles more than one LEA. However, the Act does specify that
the LEA in which the private school is located is responsible for
providing special education to children with disabilities placed in
private schools by their parents, consistent with the number of such
children and their needs. In situations where more than one LEA
potentially could assume the responsibility of providing equitable
services, the SEA, consistent with its general supervisory
responsibility, determines which LEA in the State is responsible for
ensuring the equitable participation of children with disabilities
attending that private school. We do not believe that the situation is
common enough to warrant a change in the regulations.
Changes: None.
Comment: A few commenters recommended revising the heading for
Sec. 300.132(b) to clarify that LEAs, not SEAs, are responsible for
developing service plans.
Discussion: We agree with the commenters that the heading for Sec.
300.132(b) should be changed to accurately reflect the requirement and
to avoid confusion.
Changes: We have revised the heading for Sec. 300.132(b) by
removing the reference to SEA responsibility.
Comment: One commenter requested requiring in Sec. 300.132(c) that
data on parentally-placed private school children with disabilities be
submitted to the Department. Another commenter agreed, stating that the
data should be submitted the same day as the annual child count.
Discussion: The purpose of the child count under Sec. 300.132(c)
is to determine the amount of Federal funds that the LEA must spend on
providing special education and related services to parentally-placed
private school children with disabilities in the next fiscal year. We
are not requiring States to submit these data to the Department as the
Department does not have a programmatic or regulatory need to collect
this information at this time. Section 300.644 permits the SEA to
include in its annual report of children served those parentally-placed
private school children who are eligible under the Act and receive
special education or related services. We believe this is sufficient to
meet the Department's need to collect data on this group of children
and we do not wish to place an unnecessary data collection and
paperwork burden on States.
Changes: None.
Expenditures (Sec. 300.133)
Comment: One commenter requested the regulations clarify whether an
LEA must spend its entire proportionate share for parentally-placed
private school children with disabilities by the end of a fiscal year
or could carry over any remaining funds into the next fiscal year.
Discussion: We agree with the commenter that a provision should be
included in these regulations to clarify that, if an LEA has not
expended for equitable services all of the proportionate amount of
Federal funds to be provided for parentally-placed private school
children with disabilities by the end of the fiscal year for which
Congress appropriated the funds, the LEA must obligate the remaining
funds for special education and related services (including direct
services) to parentally-placed private school children with
disabilities during a carry-over period of one additional year.
Changes: A new paragraph (a)(3) has been added to Sec. 300.133 to
address the carry over of funds not expended by the end of the fiscal
year.
Comment: None.
Discussion: It has come to our attention that there is some
confusion among States and LEAs between the count of the number of
children with disabilities receiving special education and related
services as required under section 618 of the Act, and the requirement
under section 612(a)(10)(A)(i)(II) of the Act that each LEA conduct an
annual count of the number of parentally-placed private school children
with disabilities attending private schools in the LEA. We will,
therefore, revise the heading (child count) for Sec. 300.133(c) and
the regulatory language in Sec. 300.133(c) to avoid any confusion
regarding the requirements in paragraph (c).
Changes: Section 300.133(c) has been revised as described above.
Comment: One commenter interpreted Sec. 300.133(d) to require
that: (1) LEAs provide services to parentally-placed private school
children with disabilities with funds provided under the Act and (2)
LEAs no longer have the option of using local funds equal to, and in
lieu of, the Federal pro-rated share amount. This commenter recommended
that LEAs continue to be allowed to use local funds for administrative
convenience.
Discussion: The commenter's interpretation is correct. The Act
added the supplement, not supplant requirement in section
612(a)(10)(A)(i)(IV), which is included in Sec. 300.133(d). This
requirement provides that State and local funds may supplement, but in
no case supplant the proportionate amount of the Federal Part B funds
that must be expended under this provision. Prior to the change in the
Act, if a State was spending more than the Federal proportional share
of funds from State or local funds, then the State would not have to
spend any Federal Part B funds. That is no longer permissible under the
Act.
Changes: None.
Comment: A few commenters requested revising Sec. 300.133 to
include home-schooled children with disabilities in the same category
as parentally-placed private school children with disabilities.
Discussion: Whether home-schooled children with disabilities are
considered parentally-placed private school children with disabilities
is a matter left to State law. Children with disabilities in home
schools or home day cares must be treated in the same way as other
parentally-placed private school children with disabilities for
purposes of Part B of the Act only if the State recognizes home schools
or home day cares as private elementary schools or secondary schools.
Changes: None.
Consultation (Sec. 300.134)
Comment: Some commenters recommended requiring, in Sec.
300.134(e), that the LEA include, in its written explanation to the
private school, its reason whenever: (1) The LEA does not provide
services by a professional directly employed by that LEA to parentally-
placed private school children with a disability when requested to do
so by private school officials; and (2) the LEA does not provide
services through a third party provider when requested to do so by the
private school officials.
Discussion: Section 300.134(e) incorporates the language from
section 612(a)(10)(A)(iii)(V) of the Act and requires the LEA to
provide private school officials with a written explanation of the
reasons why the LEA
[[Page 46595]]
chose not to provide services directly or through contract. We do not
believe that the additional language suggested by the commenter is
necessary because we view the statutory language as sufficient to
ensure that the LEA meets its obligation to provide private school
officials a written explanation of any reason why the LEA chose not to
provide services directly or through a contract.
Changes: None.
Written Affirmation (Sec. 300.135)
Comment: Several commenters recommended requiring LEAs to forward
the written affirmation to the SEA, because this information is
important for the SEA to exercise adequate oversight over LEAs with
respect to the participation of private school officials in the
consultation process.
Discussion: Section 300.135, regarding written affirmation, tracks
the language in section 612(a)(10)(A)(iv) of the Act. Including a
requirement in the regulations that the LEA must submit a copy of
signed written affirmations to the SEA would place reporting burdens on
the LEA that are not required by the Act and that we do not believe are
warranted in this circumstance. We expect that in most circumstances
private school officials and LEAs will have cooperative relationships
that will not need State involvement. If private school officials
believe that there was not meaningful consultation, they may raise that
issue with the SEA through the procedures in Sec. 300.136. However,
there is nothing in the Act or these regulations that would preclude a
State from requiring LEAs to submit a copy of the written affirmation
obtained pursuant to Sec. 300.135, in meeting its general supervision
responsibilities under Sec. 300.149 or as a part of its monitoring of
LEAs' implementation of Part B of the Act as required in Sec. 300.600.
Consistent with Sec. 300.199(a)(2) and section 608(a)(2) of the Act, a
State that chooses to require its LEAs to submit copies of written
affirmations to the SEA beyond what is required in Sec. 300.135 would
have to identify, in writing, to the LEAs located in the State and to
the Secretary, that such rule, regulation, or policy is a State-imposed
requirement that is not required by Part B of the Act or these
regulations.
Changes: None.
Compliance (Sec. 300.136)
Comment: One commenter recommended revising Sec. 300.136 to permit
an LEA to submit a complaint to the State if private school officials
do not engage in meaningful consultation with the LEA.
Discussion: Section 300.136, consistent with section
612(a)(10)(A)(v) of the Act, provides that a private school official
has the right to complain to the SEA that the LEA did not engage in
consultation that was meaningful and timely, or did not give due
consideration to the views of the private school official. The
provisions in the Act and the regulations apply to the responsibilities
of the SEA and its LEAs and not to private schools or entities. Because
the requirements of the Act do not apply to private schools, we do not
believe requiring SEAs to permit an LEA to submit a complaint to the
SEA alleging that representatives of the private schools did not
consult in a meaningful way with the LEA would serve a meaningful
purpose. The equitable services made available under Part B of the Act
are a benefit to the parentally-placed private school children and not
services provided to the private schools.
Changes: None.
Comment: Several commenters recommended revising Sec. 300.136 to
allow States to determine the most appropriate procedures for a private
school official to submit a complaint to the SEA that an LEA did not
engage in consultation that was meaningful and timely, or did not give
due consideration to the views of the private school officials. Many of
these commenters stated that requiring such complaints be filed
pursuant to the State complaint procedures in Sec. Sec. 300.151
through 300.153 is not required by the Act and recommended we remove
this requirement.
Discussion: We agree with the commenters that section
612(a)(10)(A)(v) of the Act does not stipulate how a private school
official must submit a complaint to the SEA that the LEA did not engage
in consultation that was meaningful and timely, or did not give due
consideration to the views of the private school official. We also
agree with the commenters that the SEA should have flexibility to
determine how such complaints will be filed with the State. We will,
therefore, revise Sec. 300.136(a) to remove the requirement that
private school officials must file a complaint with the SEA under the
State complaint procedures in Sec. Sec. 300.151 through 300.153.
States may, if they so choose, use their State complaint procedures
under Sec. Sec. 300.151 through 300.153 as the means for a private
school to file a complaint under Sec. 300.136.
Changes: Section 300.136 has been revised to remove the requirement
that a private school official submit a complaint to the SEA using the
procedures in Sec. Sec. 300.151 through 300.153.
Equitable Services Determined (Sec. 300.137)
Comment: One commenter recommended removing Sec. 300.137(a),
stating it is discriminatory and that parentally-placed private school
children must receive the same amount of services as children with
disabilities in public schools.
Discussion: Section 300.137(a) reflects the Department's
longstanding policy, consistent with section 612(a)(10) of the Act, and
explicitly provides that children with disabilities enrolled in private
schools by their parents have no individual entitlement to receive some
or all of the special education and related services they would receive
if enrolled in the public schools. Under the Act, LEAs only have an
obligation to provide parentally-placed private school children with
disabilities an opportunity for equitable participation in the services
funded with Federal Part B funds that the LEA has determined, after
consultation, to make available to its population of parentally-placed
private school children with disabilities. LEAs are not required to
spend more than the proportionate Federal share on those services.
Changes: None.
Equitable Services Provided (Sec. 300.138)
Comment: Several commenters requested clarifying whether the
requirement in Sec. 300.138(a) that services provided to parentally-
placed private school children with disabilities be provided by
personnel meeting the same standards (i.e., highly qualified teacher
requirements) as personnel providing services in the public schools
applies to private school teachers who are contracted by the LEA to
provide equitable services.
Discussion: As discussed in the Analysis of Comments and Changes
section, in the response to comments on Sec. 300.18, it is the
Department's position that the highly qualified special education
teacher requirements do not apply to teachers hired by private
elementary schools and secondary schools. This includes teachers hired
by private elementary schools and secondary schools who teach children
with disabilities. Further, it is the Department's position that the
highly qualified special education teacher requirements also do not
apply to private school teachers who provide equitable services to
parentally-placed private school children with disabilities.
[[Page 46596]]
In addition to the revision we are making to new Sec. 300.18(h)
(proposed Sec. 300.18(g)) to make this position clear, we also will
revise Sec. 300.138(a)(1) to clarify that private elementary school
and secondary school teachers who are providing equitable services to
parentally-placed private school children with disabilities do not have
to meet the highly qualified special education teacher requirements.
Changes: We have revised Sec. 300.138(a)(1) as indicated.
Comment: A few commenters requested clarifying the process for
developing a services plan and explaining how a services plan differs
from an IEP.
Discussion: We do not believe that additional explanation in the
regulation is needed. Under Sec. 300.138(b), each parentally-placed
private school child with a disability who has been designated by the
LEA in which the private school is located to receive special education
or related services must have a services plan. The services plan must
describe the specific special education and related services offered to
a parentally-placed private school child with a disability designated
to receive services. The services plan also must, to the extent
appropriate, meet the IEP content, development, review, and revision
requirements described in section 614(d) of the Act, or, when
appropriate, for children aged three through five, the IFSP
requirements described in section 636(d) of the Act as to the services
that are to be provided. The LEA must ensure that a representative of
the private school attends each meeting to develop the services plan
and if the representative cannot attend, use other methods to ensure
participation by the private school, including individual or conference
telephone calls.
Children with disabilities enrolled in public schools or who are
publicly-placed in private schools are entitled to FAPE and must
receive the full range of services under Part B of the Act that are
determined by the child's IEP Team to be necessary to meet the child's
individual needs and provide FAPE. The IEPs for these children
generally will be more comprehensive than the more limited services
plans developed for parentally-placed private school children with
disabilities designated to receive services.
Changes: None.
Comment: A few commenters recommended revising the definition of
services plan to clarify that an IEP could serve as the services plan;
otherwise, States that provide IEP services to parentally-placed
private school children with disabilities would be required to develop
a services plan and an IEP.
Discussion: We do not believe it is appropriate to clarify in the
regulations that the IEP can serve as the services plan because, as
stated elsewhere in this preamble, a services plan should only describe
the specific special education and related services offered to a
parentally-placed private school child with a disability designated to
receive services. We believe that using an IEP in lieu of a services
plan for these children may not be appropriate in light of the fact
that an IEP developed pursuant to section 614(d) of the Act will
generally include much more than just those services that a parentally-
placed private school child with a disability may receive, if
designated to receive services. There is nothing, however, in these
regulations that would prevent a State that provides more services to
parentally-placed private school children with disabilities than they
are required to do under the Act to use an IEP in place of a services
plan, consistent with State law.
Changes: None.
Location of Services and Transportation (Sec. 300.139)
Comment: A few commenters asked for clarification as to how the
location where services will be provided to parentally-placed private
school children with disabilities is determined.
Discussion: Under Sec. 300.134(d), how, where, and by whom special
education and related services are provided to parentally-placed
private school children with disabilities are subjects of the process
of consultation among LEA officials, private school representatives,
and representatives of parents of parentally-placed private school
children with disabilities. Further, Sec. 300.137(b)(2) clarifies
that, after this consultation process, the final decision with respect
to the services provided to eligible parentally-placed private school
children with disabilities is made by the LEA.
Changes: None.
Comment: Some commenters recommended specifying that providing
services on the premises of private elementary schools and secondary
schools is the preferred means of serving parentally-placed private
school children with disabilities. A few commenters recommended
revising Sec. 300.139(a) to stipulate that services ``should'' or
``must'' be provided on the premises of private schools, unless there
is a compelling rationale for these services to be provided off-site.
In contrast, several commenters objected to the statement in the
preamble to the NPRM that services should be provided on-site unless
there is a compelling rationale to provide services off-site. A few of
these commenters stated that the Act does not indicate a preference for
one location of services over another and the Department has no
authority to provide such a strong comment on this issue.
Discussion: Services offered to parentally-placed private school
children with disabilities may be provided on-site at a child's private
school, including a religious school, to the extent consistent with
law, or at another location. The Department believes, in the interests
of the child, LEAs should provide services on site at the child's
private school so as not to unduly disrupt the child's educational
experience, unless there is a compelling rationale for these services
to be provided off-site. The phrase ``to the extent consistent with
law'' is in section 612(a)(10)(A)(i)(III) of the Act. We interpret this
language to mean that the provision of services on the premises of a
private school takes place in a manner that would not violate the
Establishment Clause of the First Amendment to the U.S. Constitution
and would not be inconsistent with applicable State constitutions or
law. We, therefore, do not have the statutory authority to require that
services be provided on-site.
Changes: None.
Comment: A few commenters expressed concern that Sec. 300.139(b),
regarding transportation services, goes beyond the requirements in the
Act and should be removed. A few commenters stated that transportation
is a related service and should be treated as such with respect to
parentally-placed children with disabilities in private schools.
Discussion: We do not agree that transportation services should be
removed from Sec. 300.139(b). If services are offered at a site
separate from the child's private school, transportation may be
necessary to get the child to and from that other site. Failure to
provide transportation could effectively deny the child an opportunity
to benefit from the services that the LEA has determined through
consultation to offer its parentally-placed private school children
with disabilities. In this situation, although transportation is not a
related service, as defined in Sec. 300.34, transportation is
necessary to enable the child to participate and to make the offered
services accessible to the child. LEAs should work in consultation with
representatives of private school children to ensure that services are
[[Page 46597]]
provided at sites, including on the premises of the child's private
school, so that LEAs do not incur significant transportation costs.
However, for some children with disabilities, special modifications
in transportation may be necessary to address the child's unique needs.
If the group developing the child's services plan determines that a
parentally-placed private school child with a disability chosen to
receive services requires transportation as a related service in order
to receive special education services, this transportation service
should be included as a related service in the services plan for the
child.
In either case, the LEA may include the cost of the transportation
in calculating whether it has met the requirement of Sec. 300.133.
Changes: None.
Due Process Complaints and State Complaints (Sec. 300.140)
Comment: Several commenters expressed concern that the right of
parents of children with disabilities enrolled by their parents in
private elementary schools and secondary schools to file a due process
complaint against an LEA is limited to filing a due process complaint
that an LEA has failed to comply with the child find and evaluation
requirements, and not an LEA's failure to provide special education and
related services as required in the services plan. A few commenters
recommended that the regulations clarify whether the parent should file
a due process complaint with the LEA of residence or with the LEA where
the private school is located.
Discussion: Section 615(a) of the Act specifies that the procedural
safeguards of the Act apply with respect to the identification,
evaluation, educational placement, or provision of FAPE to children
with disabilities. The special education and related services provided
to parentally-placed private school children with disabilities are
independent of the obligation to make FAPE available to these children.
While there may be legitimate issues regarding the provision of
services to a particular parentally-placed private school child with a
disability an LEA has agreed to serve, the due process provisions in
section 615 of the Act and Sec. Sec. 300.504 through 300.519 do not
apply to these disputes, because there is no individual right to these
services under the Act. Disputes that arise about these services are
properly subject to the State complaint procedures under Sec. Sec.
300.151 through 300.153.
Child find, however, is a part of the basic obligation that public
agencies have to all children with disabilities, and failure to locate,
identify, and evaluate a parentally-placed private school child would
be subject to due process. Therefore, the due process provisions in
Sec. Sec. 300.504 through 300.519 do apply to complaints that the LEA
where the private school is located failed to meet the consent and
evaluation requirements in Sec. Sec. 300.300 through 311.
In light of the comments received, we will clarify in Sec. 300.140
that parents of parentally-placed private school children with
disabilities may file a due process complaint with the LEA in which the
private school is located (and forward a copy to the SEA) regarding an
LEA's failure to meet the consent and evaluation requirements in
Sec. Sec. 300.300 through 300.311. We also will clarify that a
complaint can be filed with the SEA under the State complaint
procedures in Sec. Sec. 300.151 through 300.153 that the SEA or LEA
has failed to meet the requirements in Sec. Sec. 300.132 through
300.135 and Sec. Sec. 300.137 through 300.144. There would be an
exception, however, for complaints filed pursuant to Sec. 300.136.
Complaints under Sec. 300.136 must be filed in accordance with the
procedures established by each State under Sec. 300.136.
Changes: Proposed Sec. 300.140(a)(2) has been redesignated as new
paragraph (b). A new paragraph (b)(2) has been added to this section to
clarify that any due process complaint regarding the evaluation
requirements in Sec. 300.131 must be filed with the LEA in which the
private school is located, and a copy must be forwarded to the SEA.
Proposed Sec. 300.140(b) has been redesignated as new paragraph (c),
and has been revised to clarify that a complaint that the SEA or LEA
has failed to meet the requirements in Sec. Sec. 300.132 through
300.135 and Sec. Sec. 300.137 through 300.144 can be filed with the
SEA under the State complaint procedures in Sec. Sec. 300.151 through
300.153. Complaints filed pursuant to Sec. 300.136 must be filed with
the SEA under the procedures established under Sec. 300.136(b).
Comment: A few commenters requested clarification as to whether a
parent of a parentally-placed private school child should request an
independent educational evaluation at public expense under Sec.
300.502(b) with the LEA of residence or the LEA where the private
school is located.
Discussion: We do not believe that this level of detail needs to be
included in the regulation. If a parent of a parentally-placed child
disagrees with an evaluation obtained by the LEA in which the private
school is located, the parent may request an independent educational
evaluation at public expense with that LEA.
Changes: None.
Use of Personnel (Sec. 300.142)
Comment: Several commenters requested clarifying language regarding
who must provide equitable services to parentally-placed private school
children with disabilities.
Discussion: Under section 612(a)(10)(A)(vi)(I) of the Act,
equitable services must be provided by employees of a public agency or
through contract by the public agency with an individual, association,
agency, organization, or other entity. Section 300.142(a) provides that
an LEA may use Part B funds to make public school personnel available
in other than public facilities to the extent necessary to provide
equitable services for parentally-placed children with disabilities
attending private schools and if those services are not otherwise
provided by the private school to children as a benefit provided to all
children attending that school. Under Sec. 300.142(b), an LEA may use
Part B funds to pay for the services of an employee of a private school
to provide equitable services if the employee performs the services
outside of his or her regular hours of duty and the employee performs
the services under public supervision and control. We believe that the
regulation is sufficiently clear on this point.
Changes: None.
Property, Equipment, and Supplies (Sec. 300.144)
Comment: A few commenters requested clarification as to whether
private school officials may purchase equipment and supplies with Part
B funds to provide services to parentally-placed private school
children with disabilities designated to receive services.
Discussion: We do not believe the additional clarification
suggested by the commenters is necessary. Section 300.144, consistent
with section 612(a)(10)(A)(vii) of the Act, already requires that the
LEA must control and administer the funds used to provide special
education and related services to parentally-placed private school
children with disabilities, and maintain title to materials, equipment,
and property purchased with those funds. Thus, the regulations and the
Act prevent private school officials from purchasing equipment and
supplies with Part B funds.
Changes: None.
[[Page 46598]]
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Applicability of Sec. Sec. 300.146 Through 300.147 (Sec. 300.145)
Comment: One commenter stated that Sec. Sec. 300.145 through
300.147 are unnecessary and solely administrative, because these
sections are addressed in the Act and the proposed regulations provide
no additional information on the application of the statutory
requirements.
Discussion: We do not agree with the commenter that the provisions
in Sec. Sec. 300.146 through 300.147 are unnecessary and solely
administrative. We believe it is necessary to retain these requirements
in the regulations, consistent with section 612(a)(10)(B) of the Act,
to ensure that public agencies are fully aware of their obligation to
ensure that children with disabilities who are placed in or referred to
a private school or facility by public agencies are entitled to receive
FAPE to the same extent as they would if they were placed in a public
agency school or program.
Changes: None.
Responsibility of SEA (Sec. 300.146)
Comment: Many commenters disagreed with the exception to the
``highly qualified teacher'' requirements in paragraph (b) of this
section and stated that the ``highly qualified teacher'' requirements
should apply to private school teachers of children with disabilities
placed or referred by public agencies. Several commenters stated that
these children are likely to have more severe disabilities and,
therefore, have a greater need for highly qualified teachers than
children served in public schools.
Several commenters stated that exempting teachers in private
schools from the requirement to be ``highly qualified'' in situations
where children with disabilities are publicly-placed in order to
receive FAPE is not consistent with the requirement that the education
provided to children in such settings meet the standards that apply to
children served by public agencies, or with the ESEA and the goal in
the Act of helping all children with disabilities achieve high
standards.
A few commenters supported the exception to ``highly qualified
teacher'' requirements. One commenter stated that States should make
their own decisions in this area in light of resource constraints.
One commenter opposed the expenditure of public school funds for
the education of publicly-placed private school children by teachers
who do not meet the ``highly qualified'' requirements.
Discussion: Section 602(10) of the Act states that ``highly
qualified'' has the meaning given the term in section 9101 of the ESEA,
which clarifies that the requirements regarding highly qualified
teachers apply to public school teachers and not teachers teaching as
employees of private elementary schools and secondary schools. As we
stated in the Analysis of Comments and Changes section regarding Sec.
300.138 in this subpart and Sec. 300.18 in subpart A, it is the
Department's position that the highly qualified teacher requirements do
not apply to teachers hired by private elementary schools and secondary
schools. This includes teachers hired by private elementary schools and
secondary schools who teach children with disabilities. We agree with
the commenters that, in many instances, a public agency may choose to
place a child with a severe disability and with more intensive
educational needs in a private school or facility as a means of
providing FAPE. When the public agency chooses to place a child with a
significant disability, or any child with a disability, in a private
school as a means of providing FAPE, the public agency has an
obligation to ensure that the child receives FAPE to the same extent
the child would if placed in a public school, irrespective of whether
the private school teachers meet the highly qualified teacher
requirements in Sec. Sec. 300.18 and 300.156(c). FAPE includes not
just the special education and related services that a child with a
disability receives, but also includes an appropriate preschool,
elementary and secondary school education in the State involved. The
required special education and related services must be provided at
public expense, at no cost to the parent, in accordance with an IEP,
and the education provided to the child must meet the standards that
apply to educational services provided by the SEA and LEA (except for
the highly qualified teacher requirements in Sec. Sec. 300.18 and
300.156(c)). In addition, the SEA must ensure that the child has all
the rights of a child with a disability who is served by a public
agency.
We do not agree with the premise of the commenters that not
requiring private school teachers who provide services to publicly-
placed children with disabilities to meet the highly qualified teacher
requirements means that the education provided to these children in the
private school setting does not meet the standards that apply to
children with disabilities served by the public agency. States have
flexibility in developing standards that meet the requirements of the
Act. The standards that SEAs apply to private schools that contract
with public agencies to provide FAPE to children with disabilities,
are, so long as they meet the requirements of Part B of the Act and its
regulations, a State matter. Federal law does not encourage or prohibit
the imposition of additional requirements as a condition of placing
these children in the private school.
With regard to the comment opposing the use of public school funds
for the education of publicly-placed private school children by
teachers who do not meet the highly qualified teacher requirements, a
State or public agency may use whatever State, local, Federal, and
private sources of support that are available in the State to meet the
requirements of the Act. We believe restricting the use of public
school funds as requested by the commenter would not only be
inconsistent with the Act, but also may unnecessarily limit a public
agency's options for providing FAPE to its publicly-placed children
with disabilities.
Changes: None.
Comment: A few commenters recommended requiring States to have
rules, regulations, and contracts requiring private schools that accept
publicly-placed children with disabilities to guarantee that children
with disabilities receive FAPE and their parents retain all of the
protections mandated for public schools, including the right to
pendency placements if the parents challenge the decisions of the
private school to terminate the children's placements. One commenter
recommended that the regulations clarify that private schools serving
children placed by a public agency are not exempt from the obligation
to provide FAPE.
Discussion: The Act does not give States and other public agencies
regulatory authority over private schools and does not place
requirements on private schools. The Act imposes requirements on States
and public agencies that refer to or place children with disabilities
in private schools for the purposes of providing FAPE to those children
because the public agency is unable to provide FAPE in a public school
or program. The licensing and regulation of private schools are matters
of State law. The Act requires States and public agencies, including
LEAs, to ensure that FAPE is made available to all children with
disabilities residing in the State in mandatory age ranges, and that
the rights and protections of the Act are extended to eligible children
and their parents. If the State or public
[[Page 46599]]
agency has placed children with disabilities in private schools for
purposes of providing FAPE to those children, the State and the public
agency must ensure that these children receive the required special
education and related services at public expense, at no cost to the
parents, in accordance with each child's IEP. It is the responsibility
of the public agency to determine whether a particular private school
in which the child with a disability will be placed for purposes of
providing FAPE meets the standards that apply to the SEA and LEA and
that a child placed by a public agency be afforded all the rights,
including FAPE, that the child would otherwise have if served by the
public agency directly.
Changes: None.
Comment: One commenter stated that, in cases where the public
agency places a child in a private school or residential treatment
facility for the purposes of providing FAPE, the public agency should
be required to determine and inform the private school or residential
treatment facility about the person or persons who have the legal
authority to make educational decisions for the child.
Discussion: The change requested by the commenter is not needed
because the public agency, not the private agency, is responsible for
providing FAPE to a child who is placed by the public agency in a
private school. Consistent with Sec. 300.146 and section 612(a)(10)(B)
of the Act, a public agency that places a child with a disability in a
private school or facility as a means of carrying out the requirements
of Part B of the Act, must ensure that the child has all the rights of
a child with a disability who is served by a public agency, which
includes ensuring that the consent requirements in Sec. 300.300 and
sections 614(a)(1)(D) and 614(c) of the Act are followed. A public
agency must, therefore, secure the needed consent from the person or
persons who have the legal authority to make such decisions, unless the
public agency has made other arrangements with the private school or
facility to secure that consent. We do not believe it is necessary or
appropriate to require the public agency to inform the private school
or facility of the persons or persons who have the legal authority to
make educational decisions for the child because this will depend on
the specific arrangements made by the public agency with a private
school or facility and, should, therefore, be determined by the public
agency on a case by case basis.
Changes: None.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Placement of Children by Parents When FAPE Is at Issue (Sec. 300.148)
Comment: Several commenters recommended retaining in these
regulations the requirement in current Sec. 300.403(b) that
disagreements between a parent and the LEA regarding the availability
of a FAPE and the question of financial responsibility, are subject to
the due process procedures in section 615 of the Act.
Discussion: The provision in current Sec. 300.403(b) was in the
1983 regulations and, therefore, should have been included in the NPRM
in light of section 607(b) of the Act. Section 607(b) of the Act
provides that the Secretary cannot publish final regulations that would
procedurally or substantively lessen the protections provided to
children with disabilities in the regulations that were in effect on
July 20, 1983. We will revise Sec. 300.148 to include the requirement
in current Sec. 300.403(b).
Changes: Section 300.148 has been revised to include the
requirement in current Sec. 300.403(b) that disagreements between a
parent and a public agency regarding the availability of a program
appropriate for the child and the question of financial responsibility
are subject to the due process procedures in Sec. Sec. 300.504 through
300.520.
Comment: One commenter requested revising the regulations to
eliminate financial incentives for parents to refer children for
special education and then unilaterally placing their child in private
schools without first receiving special education and related services
from the school district. The commenter stated that it should be clear
that a unilateral placement in a private school without first receiving
special education and related services from the LEA does not require
the public agency to provide reimbursement for private school tuition.
One commenter stated that proposed Sec. 300.148(b) goes beyond the
Act and only applies if the court or hearing officer finds that the
agency had not made FAPE available to the child in a timely manner
prior to enrollment in the private school. The commenter stated that a
determination that a placement is ``appropriate,'' even if it does not
meet the State standards that apply to education provided by the SEA or
LEAs, conflicts with the SEA's or LEA's responsibility to ensure FAPE
to children with disabilities.
Discussion: The provision in Sec. 300.148(b) that a parental
placement does not need to meet State standards in order to be
``appropriate'' under the Act is retained from current Sec. 300.402(c)
to be consistent with the Supreme Court's decisions in School Committee
of the Town of Burlington v. Department of Education, 471 U.S. 359
(1985) (Burlington) and Florence County School District Four v. Carter,
510 U.S. 7 (1993) (Carter). Under the Supreme Court's decision in
Carter, a court may order reimbursement for a parent who unilaterally
withdraws his or her child from a public school that provides an
inappropriate education under the Act and enrolls the child in a
private school that provides an education that is otherwise proper
under the Act, but does not meet the State standards that apply to
education provided by the SEA and LEAs. The Court noted that these
standards apply only to public agencies' own programs for educating
children with disabilities and to public agency placements of children
with disabilities in private schools for the purpose of providing a
program of special education and related services. The Court reaffirmed
its prior holding in Burlington that tuition reimbursement is only
available if a Federal court concludes ``both that the public placement
violated IDEA, and that the private school placement was proper under
the Act.'' (510 U.S. at 12). We believe LEAs can avoid reimbursement
awards by offering and providing FAPE consistent with the Act either in
public schools or in private schools in which the parent places the
child. However, a decision as to whether an LEA's offer or provision of
FAPE was proper under the Act and any decision regarding reimbursement
must be made by a court or hearing officer. Therefore, we do not
believe it is appropriate to include in these regulations a provision
relieving a public agency of its obligation to provide tuition
reimbursement for a unilateral placement in a private school if the
child did not first receive special education and related services from
the LEA.
This authority is independent of the court's or hearing officer's
authority under section 612 (a)(10)(C)(ii) of the Act to award
reimbursement for private placements of children who previously were
receiving special education and related services from a public agency.
Changes: None.
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
SEA Responsibility for General Supervision (Sec. 300.149)
Comment: One commenter requested that the Department clarify in
these
[[Page 46600]]
regulations how the requirements for SEA responsibility in Sec.
300.149 apply with respect to children attending BIA-funded schools who
are sent to State prisons, including whether the Office of Indian
Education Programs in the Department of the Interior can delegate the
responsibility of ensuring that the requirements of Part B of the Act
are met by the State prison. The commenter further requested
clarification regarding tribally controlled detention facilities that
incarcerate a student from a different reservation than the reservation
where the student attended a BIA-funded school.
Discussion: As a general matter, for educational purposes, students
who were enrolled in a BIA-funded school and are subsequently convicted
as an adult and incarcerated in a State run adult prison are the
responsibility of the State where the adult prison is located. Section
612(a)(11)(C) of the Act and Sec. 300.149(d) allow flexibility to
States in that the Governor, or another individual pursuant to State
law, can designate a public agency in the State, other than the SEA, as
responsible for ensuring that FAPE is made available to eligible
students with disabilities who are convicted under State law and
incarcerated in the State's adult prisons. This provision does not
apply to the Secretary of the Interior. Therefore, the Office of Indian
Education Programs cannot delegate the responsibility of ensuring that
the requirements of Part B of the Act are met by the State prison. The
Act does not specifically address who is responsible for education of
students with disabilities in tribally controlled detention facilities.
However, the Secretary of the Interior is only responsible for students
who are enrolled in schools operated or funded by the Department of the
Interior.
Changes: None.
Comment: One commenter recommended adding a heading prior to Sec.
300.149 to separate this section from the regulations governing private
schools.
Discussion: We agree with the commenter that a heading should be
added to separate the private school provisions from other State
eligibility requirements.
Changes: We have added a heading before Sec. 300.149 to separate
the private school provisions from the provisions relating to the SEA's
responsibility for general supervision and implementation of procedural
safeguards.
State Complaint Procedures (Sec. Sec. 300.151 through 300.153)
Comment: We received several comments questioning the statutory
basis for the State complaint provisions in Sec. Sec. 300.151 through
300.153. One commenter stated that the Act includes only two statutory
references to State complaints and both references (sections
612(a)(14)(E) and 615(f)(3)(F) of the Act) immediately follow statutory
prohibitions on due process remedies.
One commenter stated that Congress did not require SEAs to create a
complaint system and that section 1232c(a) of the General Education
Provisions Act, 20 U.S.C. 1232c(a) (GEPA), provides only that the
Department may require a State to investigate and resolve all
complaints received by the State related to the administration of an
applicable program. The commenter stated that the permissive wording of
this provision suggests that the Secretary or the Department can choose
not to require a complaint investigation and resolution mechanism,
particularly when such mechanism is unnecessary or, as in the case of
the Act, effectively preempted by more specific requirements in the Act
governing the applicable program.
Another commenter concluded that there is no basis for the State
complaint procedures in Sec. Sec. 300.151 through 300.153 because the
Act only allows complaints to be filed with the State in two
situations: (1) By private school officials, regarding consultation and
child find for parentally-placed private school children pursuant to
section 612(a)(10)(A)(i) and (10)(A)(iii) of the Act, and (2) by
parents, regarding personnel qualifications in section 612(a)(14)(E) of
the Act. The commenter stated that in both cases, the Act does not
detail a complaint process.
Discussion: Although Congress did not specifically detail a State
complaint process in the Act, we believe that the State complaint
process is fully supported by the Act and necessary for the proper
implementation of the Act and these regulations. We believe a strong
State complaint system provides parents and other individuals an
opportunity to resolve disputes early without having to file a due
process complaint and without having to go to a due process hearing.
The State complaint procedures are referenced in the following three
separate sections of the Act: (1) Section 611(e)(2)(B)(i) of the Act,
which requires that States spend a portion of the amount of Part B
funds that they can use for State-level activities on complaint
investigations; (2) Section 612(a)(14)(E) of the Act, which provides
that nothing in that paragraph creates a private right of action for
the failure of an SEA or LEA staff person to be highly qualified or
prevents a parent from filing a complaint about staff qualifications
with the SEA, as provided for under this part; and (3) Section
615(f)(3)(F) of the Act, which states that ``[n]othing in this
paragraph shall be construed to affect the right of a parent to file a
complaint with the State educational agency.'' Paragraph (f)(3) is
titled ``Limitations on Hearing'' and addresses issues such as the
statute of limitations and that hearing issues are limited to the
issues that the parent has raised in their due process notice. The
Senate Report explains that this provision clarifies that ``nothing in
section 615 shall be construed to affect a parent's right to file a
complaint with the State educational agency, including complaints of
procedural violations' (S. Rpt. No. 108-185, p. 41).
Furthermore, the State complaint procedures were a part of the
initial Part B regulations in 1977 (45 CFR 121a.602). These regulations
were moved into part 76 of the Education Department General
Administrative Regulations (EDGAR) in the early 1980s, and were
returned to the Part B regulations in 1992 (after the Department
decided to move the regulations out of EDGAR and place them in program
regulations for the major formula grant programs). Although the State
complaint procedures have changed in some respects in the years since
1977, the basic right of any individual or organization to file a
complaint with the SEA alleging any violation of program requirements
has remained the same. For these reasons, we believe the State
complaint procedures should be retained in the regulations.
Changes: None.
Comment: Several commenters stated that use of the term
``complaint'' in reference to due process complaints and State
complaint procedures is confusing. One commenter requested that we use
the phrase ``due process hearing request'' instead of ``due process
complaint'' in the regulations to avoid confusion between the two
processes.
Discussion: Section 615 of the Act uses the term ``complaint'' to
refer to due process complaints. We have used the phrase ``due process
complaint'' instead of the statutory term ``complaint'' throughout
these regulations to provide clarity and reduce confusion between due
process complaints in section 615 of the Act and complaints under the
State complaint procedures in Sec. Sec. 300.151 through 300.153. We
believe this distinction is sufficient to reduce confusion and it is
not necessary to add further clarification regarding the use of the
term ``complaint'' in these regulations.
[[Page 46601]]
The regulations for State complaints under Sec. Sec. 300.151
through 300.153 provide for the resolution of any complaint, including
a complaint filed by an organization or an individual from another
State alleging that the public agency violated a requirement of Part B
of the Act or of part 300. The public agency must resolve a State
complaint within 60 days, unless there is a time extension as provided
in Sec. 300.152(b). Due process complaints, as noted in Sec. 300.507,
however, may be filed by a parent or a public agency, consistent with
Sec. Sec. 300.507 through 300.508 and Sec. Sec. 300.510 through
300.515.
Changes: None.
Adoption of State Complaint Procedures (Sec. 300.151)
Comment: Many commenters recommended that only issues related to
violations of the law should be subject to the State complaint process.
One commenter stated that the State complaint procedures should be used
only for systemic violations that reach beyond the involvement of one
child in a school.
A few commenters requested that the regulations clarify that the
State complaint procedures can be used for the denial of appropriate
services and the failure to provide FAPE in accordance with a child's
IEP. However, some commenters requested that the regulations clarify
that disputes involving appropriateness of services and whether FAPE
was provided should be dealt with in a due process hearing. One
commenter stated that the State complaint procedures should be used to
investigate whether required procedures were followed and not to
determine if evaluation data and student-specific data support the IEP
Team's determination of what is appropriate for the child. The
commenter went on to state that the procedures for administrative
hearings permit the examination and cross-examination of expert
witnesses and establishing the credibility of the testimonies, which
are the functions of a hearing officer, not SEA complaint specialists.
Discussion: Some commenters, as noted above, seek to limit the
scope of the State complaint system. We believe the broad scope of the
State complaint procedures, as permitted in the regulations, is
critical to each State's exercise of its general supervision
responsibilities. The complaint procedures provide parents,
organizations, and other individuals with an important means of
ensuring that the educational needs of children with disabilities are
met and provide the SEA with a powerful tool to identify and correct
noncompliance with Part B of the Act or of part 300. We believe placing
limits on the scope of the State complaint system, as suggested by the
commenters, would diminish the SEA's ability to ensure its LEAs are in
compliance with Part B of the Act and its implementing regulations, and
may result in an increase in the number of due process complaints filed
and the number of due process hearings held.
We do not believe it is necessary to clarify in the regulations
that the State complaint procedures can be used to resolve a complaint
regarding the denial of appropriate services or FAPE for a child, since
Sec. 300.153 is sufficiently clear that an organization or individual
may file a written complaint that a public agency has violated a
requirement of Part B of the Act or part 300. The State complaint
procedures can be used to resolve any complaint that meets the
requirements of Sec. 300.153, including matters concerning the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child.
We believe that an SEA, in resolving a complaint challenging the
appropriateness of a child's educational program or services or the
provision of FAPE, should not only determine whether the public agency
has followed the required procedures to reach that determination, but
also whether the public agency has reached a decision that is
consistent with the requirements in Part B of the Act in light of the
individual child's abilities and needs. Thus, the SEA may need to
review the evaluation data in the child's record, or any additional
data provided by the parties to the complaint, and the explanation
included in the public agency's notice to the parent as to why the
agency made the determination regarding the child's educational program
or services. If necessary, the SEA may need to interview appropriate
individuals, to determine whether the agency followed procedures and
applied standards that are consistent with State standards, including
the requirements of Part B of the Act, and whether the determination
made by the public agency is consistent with those standards and
supported by the data. The SEA may, in its effort to resolve a
complaint, determine that interviews with appropriate individuals are
necessary for the SEA to obtain the relevant information needed to make
an independent determination as to whether the public agency is
violating a requirement of Part B of the Act or of part 300. However,
such interviews conducted by the SEA, as part of its effort to resolve
a State complaint, are not intended to be comparable to the requirement
in section 615(h)(2) of the Act, which provides any party to a due
process hearing the right to present evidence and confront, cross-
examine, and compel the attendance of witnesses.
In addition, a parent always has the right to file a due process
complaint and request a due process hearing on any matter concerning
the identification, evaluation, or educational placement of his or her
child, or the provision of FAPE and may seek to resolve their disputes
through mediation. It is important to clarify that when the parent
files both a due process complaint and a State complaint on the same
issue, the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of the
due process hearing must be resolved using the State complaint
procedures in Sec. 300.152, including using the time limit and
procedures in paragraphs (b) and (d) of Sec. 300.152. (See Sec.
300.152(c)(1)). Under the Act, the decision reached through the due
process proceedings is the final decision on those matters, unless a
party to the hearing appeals that decision by requesting State-level
review, if applicable, or by bringing a civil action in an appropriate
State or Federal court.
Changes: None.
Comment: A few commenters requested amending Sec. 300.151(a)(2) to
specifically include school personnel and teacher organizations in the
list of entities to whom the SEA must disseminate the State complaint
procedures. Another commenter requested that representatives of private
schools or residential treatment facilities be included on the list of
entities to whom the State must disseminate complaint procedures.
Discussion: Section 300.151(a)(2) already requires the State to
widely disseminate the State complaint procedures in Sec. Sec. 300.151
through 300.153 to parents and other interested parties, including
parent training and information centers, protection and advocacy
organizations, independent living centers, and other appropriate
entities. There is nothing in these regulations that would prevent a
State from disseminating information about the State complaint
procedures to school personnel, teacher organizations, or
representatives of private schools or residential facilities. However,
we believe this decision is best left to the States. We do not believe
that there is a need to add these entities to the mandatory
distribution as individuals involved in the education of children
[[Page 46602]]
with disabilities are generally acquainted with these procedures.
Changes: None.
Remedies for Denial of Appropriate Services (Sec. 300.151(b))
Comment: Many commenters requested retaining current Sec.
300.660(b)(1), regarding the awarding of monetary reimbursement as a
remedy for denial of appropriate services. One commenter stated that
the regulations should clarify that States continue to have authority
to award monetary reimbursement, when appropriate. A few commenters
stated that the regulations should clarify that monetary reimbursement
is not appropriate for a majority of State complaints. Some commenters
stated that removing current Sec. 300.660(b)(1) creates ambiguity and
may result in increased litigation because parents may choose to use
the more costly and time-consuming due process system if they believe
that monetary relief is not available to them under the State complaint
system. Some commenters stated that removing current Sec.
300.660(b)(1) implies that monetary reimbursement is never appropriate.
A few commenters stated that removing the monetary reimbursement
provision in current Sec. 300.660(b)(1) suggests that the Department
no longer supports the use of this remedy. A few commenters requested
that the regulations clarify that compensatory services are an
appropriate remedy when the LEA has failed to provide appropriate
services.
Discussion: The SEA is responsible for ensuring that all public
agencies within its jurisdiction meet the requirements of the Act and
its implementing regulations. In light of the SEA's general supervisory
authority and responsibility under sections 612(a)(11) and 616 of the
Act, we believe the SEA should have broad flexibility to determine the
appropriate remedy or corrective action necessary to resolve a
complaint in which the SEA has found that the public agency has failed
to provide appropriate services to children with disabilities,
including awarding monetary reimbursement and compensatory services. To
make this clear, we will change Sec. 300.151 to include monetary
reimbursement and compensatory services as examples of corrective
actions that may be appropriate to address the needs of the child.
Changes: We have added ``compensatory services or monetary
reimbursement'' as examples of corrective actions in Sec.
300.151(b)(1).
Comment: One commenter stated that the remedies available in Sec.
300.151(b) are silent about whether the complainant may be reimbursed
for attorneys' fees and requested clarification as to whether
reimbursement is permissible for State complaints. Another commenter
requested that the language in section 615(i)(3)(B) of the Act,
regarding the awarding of attorneys' fees for due process hearings, be
included in the State complaint procedures as a way to limit
repetitive, harassing complaints.
Discussion: The awarding of attorneys' fees is not addressed in
Sec. 300.151(b) because the State complaint process is not an
administrative proceeding or judicial action, and, therefore, the
awarding of attorneys' fees is not available under the Act for State
complaint resolutions. Section 615(i)(3)(B) of the Act clarifies that a
court may award attorneys' fees to a prevailing party in any action or
proceeding brought under section 615 of the Act. We, therefore, may not
include in the regulations the language from section 615(i)(3)(B) of
the Act, as suggested by the commenters, because State complaint
procedures are not an action or proceeding brought under section 615 of
the Act.
Changes: None.
Minimum State Complaint Procedures (Sec. 300.152)
Time Limit; Minimum Procedures (Sec. 300.152(a))
Comment: One commenter suggested changing Sec. 300.152(a)(1), to
include situations when the SEA is the subject of a complaint. Another
commenter recommended that the State complaint procedures include how
the SEA should handle a complaint against the SEA for its failure to
supervise the LEA or failure to provide direct services when given
notice that the LEA has failed to do so.
Discussion: We do not believe it is necessary to specify in the
regulations how the SEA should handle a complaint filed against the SEA
because Sec. 300.151 clarifies that, if an organization or individual
files a complaint, pursuant to Sec. Sec. 300.151 through 300.153, that
a public agency has violated a requirement of Part B of the Act or part
300, the SEA must resolve the complaint. Pursuant to Sec. 300.33 and
section 612(a)(11) of the Act, the term public agency includes the SEA.
The SEA must, therefore, resolve any complaint against the SEA pursuant
to the SEA's adopted State complaint procedures. The SEA, however, may
either appoint its own personnel to resolve the complaint, or may make
arrangements with an outside party to resolve the complaint. If it
chooses to use an outside party, however, the SEA remains responsible
for complying with all procedural and remediation steps required in
part 300.
Changes: None.
Comment: One commenter suggested that the regulations include
language requiring an on-site investigation unless the SEA determines
that it can collect all evidence and fairly determine whether a
violation has occurred with the evidence provided by the complainant
and a review of records.
Discussion: We do not believe the regulations should require the
SEA to conduct an on-site investigation in the manner suggested by the
commenter because we believe Sec. 300.152(a)(1) is sufficient to
ensure that an independent on-site investigation is carried out if the
SEA determines that such an investigation is necessary to resolve a
complaint. The minimum State complaint procedures in Sec. 300.152 are
intended to be broad in recognition of the fact that States operate
differently and standards appropriate to one State may not be
appropriate in another State. Therefore, the standards to be used in
conducting an on-site investigation are best determined by the State.
Changes: None.
Comment: One commenter stated that Sec. 300.152 would allow an
unlimited period of time to resolve complaints and requested that the
regulations limit the complaint resolution process to 30 days, similar
to the procedures when a due process hearing is requested. A few
commenters requested that the 60-day time limit be lengthened to 90
days, given that many complaints involve complex issues and multiple
interviews with school administrators.
Discussion: Section 300.152 does not allow an unlimited period of
time to resolve a complaint. Paragraph (a) of this section provides
that an SEA has a time limit of 60 days after a complaint is filed to
issue a written decision to the complainant that addresses each
allegation in the complaint (unless, under paragraph (b) of this
section, there is an extension for exceptional circumstances or the
parties agree to extend the timeline because they are engaged in
mediation or in other alternative means of dispute resolution, if
available in the State). We believe the right of parents to file a
complaint with the SEA alleging any violation of Part B of the Act or
part 300 to receive a written decision within 60 days is reasonable in
light of the SEA's responsibilities in resolving a complaint pursuant
to its complaint procedures, and is appropriate to the interest of
resolving allegations promptly. In
[[Page 46603]]
addition, the 60-day time limit for resolving a State complaint is a
longstanding requirement and States have developed their State
complaint procedures based on the 60-day time limit. We believe
altering this timeframe would be unnecessarily disruptive to States'
developed complaint procedures. For these reasons, we do not believe it
is appropriate to change the time limit as recommended by the
commenters.
Changes: None.
Comment: One commenter expressed concern that the regulations are
silent as to how an amended State complaint should be handled. One
commenter expressed concern about resolving complaints within the 60-
day time limit when the complainant submits additional information
about the complaint and amends the complaint. The commenter requested
that in such cases, the regulations should allow the 60-day time limit
to begin from the date the State receives the amended complaint.
Discussion: Section 300.152 provides that the complaint must be
resolved 60 days after a complaint is filed and that the complainant
must be given an opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint.
Generally, if the additional information a parent submits is on the
same or related incident, it would be part of the amended complaint. If
the information submitted by the complainant is on a different or
unrelated incident, generally, the new information would be treated as
a separate complaint. On the other hand, if the information submitted
by the complainant were on the same incident, generally, the new
information would be treated as an amendment to the original complaint.
It is, ultimately, left to each State to determine whether the new
information constitutes a new complaint or whether it is related to a
pending complaint. We believe the decision regarding whether the
additional information is a new complaint or an amendment to an
existing complaint, is best left to the State. The State must have the
flexibility to make this determination based on the circumstances of a
particular complaint and consistent with its State complaint process
and, therefore, we do not believe it is appropriate to regulate further
on this matter.
There are no provisions in Part B of the Act or in these
regulations that permit the 60-day time limit to begin from the date
the State receives an amended complaint, if additional information
submitted by the complainant results in an amendment to the complaint.
However, Sec. 300.152(b) permits an extension of the 60-day time limit
if exceptional circumstances exist or the parent and the public agency
agree to extend the time limit to attempt to resolve the complaint
through mediation.
Changes: None.
Comment: One commenter requested clarification regarding the time
limit for a public agency to respond with a proposal to resolve the
complaint.
Discussion: The 60-day time limit to resolve a complaint does not
change if a public agency decides to respond to the complaint with a
proposal to resolve the complaint. However, Sec. 300.152(b)(2) permits
the 60-day time limit to be extended under exceptional circumstances or
if the parent and public agency agree to engage in mediation or in
other alternative means of dispute resolution, if available in the
State.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.152(a)
could limit the SEA's investigation of a complaint to an exchange of
papers since the SEA is not required to conduct an on-site
investigation.
Discussion: Section 300.152 provides that the SEA must review all
relevant information and, if it determines it to be necessary, carry
out an independent on-site investigation in order to make an
independent determination as to whether the public agency is violating
a requirement of Part B of the Act or part 300. We believe the SEA is
in the best position, and should have the flexibility, to determine
what information is necessary to resolve a complaint, based on the
facts and circumstances of the individual case. It is true that, in
some cases, a review of documents provided by the parties may be
sufficient for the SEA to resolve a complaint and that conducting an
on-site investigation or interviews with staff, for example, may be
unnecessary. The SEA, based on the facts in the case, must decide
whether an on-site investigation is necessary. We also believe
requiring an on-site investigation for each State complaint would be
overly burdensome for public agencies and unnecessary.
Changes: None.
Comment: A few commenters requested adding language to proposed
Sec. 300.152(a)(3) to allow an SEA to provide opportunities for
resolving the complaint through mediation and other informal mechanisms
for dispute resolution with any party filing a complaint, not only the
parents. Some commenters requested that the regulations clarify that
mediation is the appropriate method to resolve State complaints
regarding the denial of appropriate services.
A few commenters expressed concern that the phrase ``[w]ith the
consent of the parent'' in proposed Sec. 300.152(a)(3) implies that
complaints are disagreements between parents and public agencies,
rather than allegations of violations of a child's or a parent's rights
under the Act.
A few commenters supported the use of mediation to resolve a
complaint, but requested that alternative means of dispute resolution
be deleted. Other commenters expressed concern that providing yet
another means of initiating mediation or other dispute resolution is
unnecessary because these options are already available to parties who
wish to use them. A few commenters requested that the regulations
define alternative means of dispute resolution.
Discussion: Section 300.152(a)(3) was proposed to encourage
meaningful, informal, resolution of disputes between the public agency
and parents, organizations, or other individuals by providing an
opportunity for parties to resolve disputes at the local level without
the need for the SEA to resolve the matter. We believe that, at a
minimum, the State's complaint procedures should allow the public
agency that is the subject of the complaint the opportunity to respond
to a complaint by proposing a resolution and provide an opportunity for
a parent who has filed a complaint and the public agency to resolve a
dispute by voluntarily engaging in mediation. However, we do not
believe that the SEA should be required to offer other alternative
means of dispute resolution, and so will remove the reference to these
other alternatives from the minimum procedures in Sec. 300.152(a)(3).
We believe it is important to retain the provision in Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)), with modification,
to reinforce the use of voluntary mediation as a viable option for
resolving disputes between the public agency and the parents at the
local level prior to the SEA investigating, if necessary, and resolving
a dispute. Resolving disputes between parties at the local level
through the use of mediation, or other alternative means of dispute
resolution, if available in the State, will be less adversarial and
less time consuming and expensive than a State complaint investigation,
if necessary, or a due process hearing and, ultimately, children with
disabilities will be the beneficiaries of a local level resolution.
Requiring that the public agency provide an opportunity for the
parent
[[Page 46604]]
who has filed a complaint and the public agency to voluntarily engage
in mediation in an effort to resolve a dispute is an appropriate
minimum requirement and consistent with the statutory provision in
section 615(e) of the Act that voluntary mediation be made available to
parties (i.e., parent and public agency) to disputes involving any
matter under Part B of the Act, including matters arising prior to the
filing of a due process complaint. However, the statute does not
require that mediation be available to other parties, and we believe it
would be burdensome to expand, through regulation, new Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)) to require that
States offer mediation to non-parents. Although we do not believe we
should regulate to require that mediation be offered to non-parents,
there is nothing in the Act or these regulations that would preclude an
SEA from permitting the use of mediation, or other alternative dispute
resolution mechanisms, if available in the State, to resolve a State
complaint filed by an organization or individual other than a parent,
and we will add language to Sec. 300.152(b)(1)(ii) to permit
extensions of the timeline if the parties are voluntarily engaged in
any of these dispute resolution procedures. In fact, we encourage SEAs
and their public agencies to consider alternative means of resolving
disputes between the public agency and organizations or other
individuals, at the local level, consistent with State law and
administrative procedures. It is up to each State, however, to
determine whether non-parents can use mediation or other alternative
means of dispute resolution.
Section 615(e) of the Act makes clear that mediation is a voluntary
mechanism for resolving disputes and may not be used to delay or deny a
parent's right to a due process hearing on the parent's due process
complaint, or to deny any other rights afforded under Part B of the
Act. In light of the fact that mediation is a voluntary process, the
parties only need to agree to engage in mediation and it is not
necessary to obtain parental written consent to engage in this
voluntary process. We will, therefore, change new Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)) by removing the
phrase ``[w]ith the consent of the parent'' and adding a reference to
Sec. 300.506.
We do not believe it is necessary to include in the regulations a
definition of the term ``alternative means of dispute resolution''
because the term is generally understood to refer to other procedures
and processes that States have found to be effective in resolving
disputes quickly and effectively but does not include those dispute
resolution processes required under the Act or these final regulations.
Changes: We have changed new Sec. 300.152(a)(3)(ii) (proposed
Sec. 300.152(a)(3)(B)) by removing ``with the consent of the parent''
and ``or other alternative means of dispute resolution'' and adding a
reference to Sec. 300.506. We have also amended Sec.
300.152(b)(1)(ii), as stated above, to clarify that a public agency's
State complaint procedures must permit an extension of the 60-day time
limit if a parent (or individual or organization, if mediation, or
other alternative means of dispute resolution is available to the
individual or organization under State procedures) who has filed a
complaint and the public agency voluntarily agree to extend the time to
engage in mediation or other alternative means of dispute resolution,
if available in the State.
Comment: A few commenters stated that the agreement to extend the
60-day time limit (to allow the parties to engage in mediation, or
alternative means of dispute resolution, or both) should meet the
consent requirements in Sec. 300.9. One commenter requested an
extension of the 60-day time limit to resolve complaints when mediation
is underway.
Discussion: We do not agree that consent, as defined in Sec.
300.9, should be required to extend the 60-day time limit because it
would add burden and is not necessary. It is sufficient to require
agreement of the parties. At any time that either party withdraws from
mediation or other alternative means of dispute resolution, or
withdraws agreement to the extension of the time limit, the extension
would end. We believe Sec. 300.152(b) is sufficiently clear that an
extension of the 60-day time limit is permissible if exceptional
circumstances exist with respect to a particular complaint, or if the
parent and the public agency agree to extend the time to engage in
mediation. We also believe it would be permissible to extend the 60-day
time limit if the public agency and an organization or other individual
agree to engage in an alternative means of dispute resolution, if
available in the State, and the parties agree to extend the 60-day time
limit. We will revise Sec. 300.152(b)(1)(ii) to include this
exception.
Changes: We have revised Sec. 300.152(b)(1)(ii) to clarify that it
would be permissible to extend the 60-day time limit if the parties
agree to engage in other alternative means of dispute resolution, if
available in the State.
Comment: Several commenters requested that Sec. 300.152(a) be
modified to include language allowing parents, in addition to the
public agency, an opportunity to submit a proposal to resolve the
complaint.
Discussion: We do not believe it is necessary to include the
language in Sec. 300.152(a) as suggested by the commenter because
Sec. 300.153(b)(4)(v) already requires that the signed written
complaint submitted to the SEA by the complainant include a proposed
resolution to the problem. A parent who is a complainant must include a
proposed resolution to the problem to the extent known and available to
the parent at the time the complaint is filed.
Changes: None.
Complaints Filed Under This Section and Due Process Hearings Under
Sec. 300.507 or Sec. Sec. 300.530 Through 300.532 (Sec. 300.152(c))
Comment: A few commenters requested that the regulations include a
provision to allow parents to use the State complaint process to
enforce agreements reached in mediation and resolution sessions. One
commenter expressed concern that if an SEA does not have authority to
enforce agreements arising from mediation and resolution sessions, the
burden will be on a parent to incur costs necessary to file a petition
with a court to have the agreement enforced.
Discussion: The Act provides that the enforcement and
implementation of agreements reached through mediation and resolution
sessions may be obtained through State and Federal courts. Section
300.506(b)(7), consistent with section 615(e)(2)(F)(iii) of the Act,
states that a written, signed mediation agreement is enforceable in any
State court of competent jurisdiction or in a district court of the
United States. Similarly, Sec. 300.510(c)(2), consistent with section
615(f)(1)(B)(iii)(II) of the Act, states that a written settlement
agreement resulting from a resolution meeting is enforceable in any
State court of competent jurisdiction or in a district court of the
United States.
However, as noted in the Analysis of Comments and Changes for
subpart E, we have added new Sec. 300.537 that allows, but does not
require, a State to have mechanisms or procedures that permit parties
to mediation or resolution agreements to seek enforcement of those
agreements and decisions at the SEA level. We believe this provision is
sufficient to allow States the flexibility to determine what mechanisms
or procedures, if any, may be appropriate to enforce such agreements,
including utilizing their
[[Page 46605]]
State complaint procedures, if they choose to do so, so long as the
mechanisms or procedures are not used to deny or delay a parent's right
to seek enforcement through State and Federal courts.
Changes: None.
Comment: Numerous commenters requested that current Sec.
300.661(c)(3), regarding the SEA's responsibility to resolve complaints
alleging a public agency's failure to implement due process decisions,
be retained. Many commenters raised concerns that removing this
language will lead to more litigation. One commenter stated that
parents would be forced to litigate due process decisions, which will
prolong the denial of FAPE to children. Another commenter stated that
not allowing States to enforce a hearing officer's decision encourages
litigation because it is the only avenue for relief. Several commenters
stated that parents are placed at a disadvantage because they may not
have the resources to file in State or Federal court.
Discussion: The SEA's obligation to implement a final hearing
decision is consistent with the SEA's general supervisory
responsibility, under sections 612(a)(11) and 616 of the Act, over all
education programs for children with disabilities in the State, which
includes taking necessary and appropriate actions to ensure that the
provision of FAPE and all the requirements in Part B of the Act and
part 300 are carried out. However, we agree that the requirements from
current Sec. 300.661(c)(3) should be retained for clarity.
Changes: We have added the requirement in current Sec.
300.661(c)(3) as new Sec. 300.152(c)(3).
Comment: Numerous commenters requested retaining current Sec.
300.661(c)(1), which requires that any issue in the complaint that is
not a part of a due process complaint be resolved using the applicable
State complaint timelines and procedures. One commenter stated that
Sec. 300.152(c)(1) requires the State to set aside an entire complaint
if due process proceedings commence with respect to any subject that is
raised in the complaint. A few commenters expressed concern that if
issues in a State complaint, which are not part of a due process
complaint, are not investigated until the due process complaint is
resolved, children may go without FAPE for extended periods of time.
These commenters also stated that parents are likely to file for due
process on every issue of concern, rather than using the more
expeditious and less expensive State complaint procedures.
Discussion: We agree that language in current Sec. 300.661(c),
requiring that States set aside any part of a State complaint that is
being addressed in a due process hearing, until the conclusion of the
hearing and resolve any issue that is not a part of the due process
hearing, should be retained.
Changes: We have revised Sec. 300.152(c)(1) by adding the
requirements in current Sec. 300.661(c)(1) to the regulations.
Comment: One commenter stated that the regulations do not address
the disposition of a complaint if a parent and a public agency come to
a resolution of a complaint through mediation. One commenter
recommended that the regulations provide guidance on how an SEA should
handle a complaint that is withdrawn. Another commenter requested
clarification on what should occur if an SEA does not approve of the
agreement reached between the parent and the public agency.
Discussion: We do not believe it is necessary to regulate on these
matters, as recommended by the commenters. Section 615(e)(2)(F) of the
Act and Sec. 300.506(b)(7) clarify that an agreement reached through
mediation is a legally binding document enforceable in State and
Federal courts. Therefore, an agreement reached through mediation is
not subject to the SEA's approval. We strongly encourage parties to
resolve a complaint at the local level without the need for the SEA to
intervene. If a complaint is resolved at the local level or is
withdrawn, no further action is required by the SEA to resolve the
complaint.
Changes: None.
Comment: One commenter suggested including language in the
regulations that would require parties to provide evidence under threat
of perjury. Another commenter stated that the State complaint process
should be non-adversarial and that neither party should have the right
to review the other's submissions or to cross-examine the other party.
Discussion: We do not believe it is appropriate to include the
language suggested by the commenters because we believe requiring
parties to provide evidence under the threat of perjury, permitting
parties to review submissions, and allowing one party to cross-examine
the other party are contrary to the intent of the State complaint
process. The State complaint process is intended to be less adversarial
than the more formal filing of a due process complaint and possibly
going to a due process hearing. To make the changes requested by the
commenters will serve only to make the State complaint process more
adversarial and will not be in the best interest of the child. The
State complaint procedures in Sec. Sec. 300.151 through 300.153 do not
require parties to provide evidence, nor do they require that a State
allow parties to review the submissions of the other party or to cross-
examine witnesses.
Changes: None.
Filing a Complaint (Sec. 300.153)
Comment: One commenter recommended the regulations include a limit
on the number of times that an individual may file a State complaint
against a public agency.
Discussion: An SEA is required to resolve any complaint that meets
the requirements of Sec. 300.153, including complaints that raise
systemic issues, and individual child complaints. It would be
inconsistent with the Act's provisions in section 616 regarding
enforcement and the Act's provisions in section 612 regarding general
supervision for an SEA to have a State complaint procedure that removes
or limits a party's right to file a complaint that a public agency has
violated a requirement of Part B of the Act or part 300, including
limiting the number of times a party can file a complaint with the SEA.
Therefore, it is not appropriate to include in the regulations the
language suggested by the commenter, nor should the SEA include in its
State complaint procedures any restriction on the number of times a
party can file a complaint, as long as the complaint meets the
requirements of Sec. 300.153.
Changes: None.
Comment: Many commenters requested retaining current Sec.
300.662(c), which permits a complaint to be filed about a violation
that occurred more than one year prior to the date the complaint is
received if the violation is continuing or the complainant is
requesting compensatory services for a violation that occurred more
than three years prior to the date the complaint is received.
Some commenters requested that the regulations permit a parent to
have as much time to file a State complaint as a parent would have to
file a due process complaint (two years, unless provided otherwise by
State law). One commenter stated that extensions of the statute of
limitations should be granted when circumstances warrant an extension.
Another commenter suggested adding language providing that the
timeline begins when a parent first learns about the violation. A few
commenters stated that parents need a longer statute of
[[Page 46606]]
limitations for State complaints because they do not always know about
violations when they occur and may not fully understand how the
violation affects their child's education.
Several commenters stated that Congress did not intend to create a
one-year statute of limitations for State complaints when it created a
two-year statute of limitations for due process hearings. Several
commenters stated that there is no evidence that Congress intended to
change the current three-year statute of limitations on the parents'
right to file a State complaint when the violation is ongoing or
compensatory services are being requested.
Discussion: We believe a one-year timeline is reasonable and will
assist in smooth implementation of the State complaint procedures. The
references to longer periods for continuing violations and for
compensatory services claims in current Sec. 300.662(c) were removed
to ensure expedited resolution for public agencies and children with
disabilities. Limiting a complaint to a violation that occurred not
more than one year prior to the date that the complaint is received
will help ensure that problems are raised and addressed promptly so
that children receive FAPE. We believe longer time limits are not
generally effective and beneficial to the child because the issues in a
State complaint become so stale that they are unlikely to be resolved.
However, States may choose to accept and resolve complaints regarding
alleged violations that occurred outside the one-year timeline, just as
they are free to add additional protections in other areas that are not
inconsistent with the requirements of the Act and its implementing
regulations. For these reasons, we do not believe it is necessary to
retain the language in current Sec. 300.662(c).
We do not believe it is appropriate to change the timeline to begin
when a parent first learns about the violation, as suggested by the
commenter, because such a provision could lead to some complaints being
filed well beyond one year from the time the violation actually
occurred. This also would make the issue of the complaint so stale that
the SEA would not be able to reasonably resolve the complaint and
recommend an appropriate corrective action.
As we stated earlier in the Analysis of Comments and Changes for
this subpart, Congress did not specifically address or detail a State
complaint process in the Act; nor did Congress express an opinion
regarding the time limit for filing a complaint under a State's
complaint process.
Changes: None.
Comment: Several commenters stated that Sec. 300.153(c) appears to
indicate that if a State complaint, is also the subject of a due
process complaint, the time period to file the complaint is two years,
rather than the one-year time limit applicable for all other State
complaints. Several commenters stated that this provision should be
removed and that a one-year limitation should apply to all State
complaints, regardless of whether a request for a due process hearing
is filed on the issue(s) in the complaint.
Discussion: If a State complaint contains multiple issues of which
one or more is part of a due process hearing, the one-year statute of
limitations would apply to the issues that are resolved under the State
complaint procedures; the State due process statute of limitations
would apply to the issues that are the subject of the due process
hearing. We agree that the language in Sec. 300.153 is confusing and
will amend the language to remove the reference to the due process
complaint.
Changes: We have removed the phrase, ``Except for complaints
covered under Sec. 300.507(a)(2)'' in Sec. 300.153(c).
Comment: Some commenters recommended removing the requirement in
Sec. 300.153(d) that requires the party filing the complaint to
forward a copy of the complaint to the LEA or public agency serving the
child at the same time the party files the complaint with the SEA. One
commenter stated that filing a complaint is onerous enough for parents,
without including an extra step of requiring a copy of the complaint to
be forwarded to the school. One commenter stated that this poses an
unnecessary paperwork burden on parents. A few commenters stated that
forwarding a copy of the complaint to the LEA should be the
responsibility of the SEA, not the parents.
One commenter expressed concern that requiring the party filing the
complaint to forward a copy of the complaint to the LEA or public
agency serving the child will discourage parents or school personnel
whistle blowers from filing a complaint and recommended instead, that
the regulations require SEAs to provide the LEA with a concise
statement of fact upon which the complaint is based and the provisions
of laws and rules that are at issue. A few commenters requested
including language in Sec. 300.153(d) giving the SEA discretion to
protect the confidentiality of the complainant. A few commenters
recommended removing the requirement in Sec. 300.153(b)(3) for the
written complaint to include the signature and contact information for
the complainant.
Discussion: The purpose of requiring the party filing the complaint
to forward a copy of the complaint to the LEA or public agency serving
the child, at the same time the party files the complaint with the SEA,
is to ensure that the public agency involved has knowledge of the
issues and an opportunity to resolve them directly with the complaining
party at the earliest possible time. The sooner the LEA knows that a
complaint is filed and the nature of the issue(s), the quicker the LEA
can work directly with the complainant to resolve the complaint. We
believe the benefit of having the complainant forward a copy of the
complaint to the LEA or public agency far outweigh the minimal burden
placed on the complainant because it will lead to a faster resolution
of the complaint at the local level. For these reasons, we also do not
believe it is more efficient to have the SEA forward the complaint to
the public agency or provide the public agency with a statement
summarizing the complaint.
We do not believe that the complaint procedures should provide for
the confidentiality of the complainant. The complainant should not
remain unknown to the public agency that is the subject of the
complaint because that public agency needs to know who the complainant
is and something about the complaint (consistent with Sec. 300.153)
before it can be expected to resolve the issues. We believe it is
reasonable to require a party to file a signed complaint and provide
contact information to the SEA in order to ensure the credibility of
the complaint and provide the SEA with the basic contact information
necessary for the SEA to handle complaints expeditiously. If the SEA
receives a complaint that is not signed, as required in Sec. 300.153,
the SEA may choose to dismiss the complaint.
Changes: None.
Comment: One commenter expressed concern that a parent must have
legal knowledge in order to correctly file a State complaint.
Discussion: Contrary to the commenter's assertion that a parent
must have legal knowledge to file a complaint, we believe the State
complaint procedures, which are under the direct control of the SEA,
provide the parent and the school district with mechanisms that allow
them to resolve differences without having to resort to a more costly
and cumbersome due process complaint, which, by its nature, is
litigious. We believe if a State effectively implements its State
complaint procedures, both parents and public agencies will generally
find the
[[Page 46607]]
process efficient and easy to initiate. We further believe that the
requirement in Sec. 300.509 that each SEA must develop model forms to
assist parents in filing a State complaint in accordance with
Sec. Sec. 300.151 through 300.153, and in filing a due process
complaint in accordance with Sec. Sec. 300.507(a) and 300.508(a)
through (c), will make the process of filing such complaints much
easier for parents and others.
Changes: We have made a minor wording change in Sec. 300.153(b)(4)
for clarity.
Comment: One commenter stated that the complainant should not have
to propose a resolution to the problem, as required in Sec.
300.153(b)(4)(v), in order to have the State investigate a complaint.
Discussion: Section 300.153(b)(4)(v) requires the complainant to
propose a resolution to the complaint only to the extent known and
available to the complainant at the time the complaint is filed. We
believe this proposed resolution is necessary because it gives the
complainant an opportunity to state what he or she believes to be the
problem and how the complainant believes it can be resolved. This is
important because it gives the complainant an opportunity to tell the
public agency what is wrong and what it would take to fix the problem
from the complainant's point of view. It also will give the LEA an
opportunity to choose either to do as the complainant requests or
propose a solution that it believes would resolve the issue raised by
the complainant. Thus, if successful, the parties will avoid an
adversarial relationship and possibly the expense of a due process
hearing.
Changes: None.
Comment: One commenter requested that Sec. 300.153(d) include
language allowing an LEA to appeal an SEA finding to an administrative
hearing or the courts. Another commenter expressed concern that the
State complaint procedures lack an appeals process for parties that
lose under the State complaint procedures.
Discussion: The regulations neither prohibit nor require the
establishment of procedures to permit an LEA or other party to request
reconsideration of a State complaint decision. We have chosen to be
silent in the regulations about whether a State complaint decision may
be appealed because we believe States are in the best position to
determine what, if any, appeals process is necessary to meet each
State's needs, consistent with State law.
If a State chooses, however, to adopt a process for appealing a
State complaint decision, such process may not waive any of the
requirements in Sec. Sec. 300.151 through 300.153. Section 300.152
requires that the SEA issue a final decision on each complaint within
60 calendar days after the complaint is filed, unless the SEA extends
the timeline as provided in Sec. 300.152(b). This means that, absent
an appropriate extension of the timeline for a particular complaint,
the State must issue a final decision within 60 calendar days.
However, if after the SEA's final decision is issued, a party who
has the right to request a due process hearing (that is, the parent or
LEA) and who disagrees with the SEA's decision may initiate a due
process hearing, provided that the subject of the State complaint
involves an issue about which a due process hearing can be filed and
the two-year statute of limitations for due process hearings (or other
time limit imposed by State law) has not expired.
Changes: None.
Method of Ensuring Services (Sec. 300.154)
Establishing Responsibility for Services (Sec. 300.154(a))
Comment: One commenter suggested posting interagency agreements on
SEA Web sites and in public buildings, and making them available upon
request.
Discussion: There is nothing in the Act or these regulations that
would prohibit an SEA from posting interagency agreements on Web sites,
in public buildings, or making them available upon request. However, we
believe that it would be unnecessarily burdensome to require SEAs to do
so and any decision regarding posting interagency agreements is best
left to the States' discretion.
Changes: None.
Comment: One commenter stated that interagency agreements are
important because agencies other than SEAs (e.g., mental health
agencies that place children in residential facilities) are responsible
for providing special educational services. The commenter requested
that the regulations specify that residential facilities be allowed
reimbursement for providing educational services and that children in
these facilities are entitled to FAPE.
Discussion: We do not believe it is necessary to further clarify in
the regulations that children with disabilities who are placed in
residential facilities by public agencies are entitled to FAPE because
Sec. 300.146, consistent with section 612(a)(10)(B) of the Act,
provides that SEAs must ensure that children with disabilities receive
FAPE when they are placed in or referred to private schools or
facilities by public agencies. Whether residential facilities can
receive reimbursement for educational services will depend on how
States have apportioned financial responsibility among State agencies
and we do not believe that regulating on this issue is appropriate or
necessary.
Changes: None.
Obligation of Noneducational Public Agencies (Sec. 300.154(b))
Comment: One commenter expressed concern that Sec. 300.154(b)
allows LEAs to discontinue services when there is a dispute with other
agencies and requested the regulations require LEAs to bear the
ultimate responsibility for providing services.
Discussion: We do not believe it is necessary to further clarify
that the LEA is ultimately responsible for providing services because
Sec. 300.154(b)(2) sufficiently requires that if a public agency other
than an educational agency fails to provide or pay for the special
education and related services in Sec. 300.154(b)(1), the LEA or State
agency responsible for developing the child's IEP must provide or pay
for these services to the child in a timely manner. Disagreements about
the interagency agreements should not stop or delay the receipt of the
services described in the child's IEP. Section 300.103(c) also
addresses timely services and clarifies that, consistent with Sec.
300.323(c), the State must ensure there is no delay in implementing a
child's IEP, including any situation in which the source for providing
or paying for the special education or related services to a child is
being determined. Section 612(a)(12)(A)(i) of the Act provides that the
financial responsibility of public agencies (other than an educational
agency), including Medicaid and other public insurers obligated under
Federal or State law or assigned responsibility under State policy,
must precede financial responsibility of the LEA.
Changes: None.
Children With Disabilities Who Are Covered by Public Benefits or
Insurance (Sec. 300.154(d))
Comment: One commenter expressed concern regarding the use of a
parent's public benefits or insurance to pay for services required
under Part B of the Act because co-payments and other out-of-pocket
expenses would be a hardship to low-income families. A few commenters
stated that services paid for by public benefits or insurance would
count against a child's lifetime cap.
Discussion: The commenters' concerns are addressed in Sec.
300.154(d)(2)(ii) and (d)(2)(iii). Section 300.154(d)(2)(ii) states
that a public agency may not require parents to incur
[[Page 46608]]
an out-of-pocket expense, such as the payment of a deductible or co-pay
amount, in filing a claim for services, and may pay from funds reserved
under the Act, the cost that the parent would otherwise be required to
pay. In addition, Sec. 300.154(d)(2)(iii) states that a public agency
may not use a child's benefits under a public benefits or insurance
program if that use would decrease lifetime coverage or any other
insured benefit; result in the family paying for services that would
otherwise be covered by the public benefits or insurance program and
that are required for the child outside of the time the child is in
school; increase premiums or lead to the discontinuation of benefits or
insurance; or risk loss of eligibility for home and community-based
waivers, based on aggregate health-related expenditures.
Changes: None.
Comment: One commenter suggested changing ``parental consent'' to
``informed parental consent.'' One commenter recommended requiring
public agencies to obtain parental consent each time the public agency
seeks to access the parent's public benefits or insurance. Some
commenters recommended removing the requirement to obtain parental
consent to use Medicaid benefits to pay for services required under
Part B of the Act. A few commenters opposed requiring parental consent,
stating the process is an administrative burden. Other commenters
recommended waiving the requirement for consent if the agency has taken
reasonable measures to obtain such consent or the parent's consent was
given to the State Medicaid Agency.
Discussion: In order for a public agency to use the Medicaid or
other public benefits or insurance program in which a child
participates to provide or pay for services required under the Act, the
public agency must provide the benefits or insurance program with
information from the child's education records (e.g., services
provided, length of the services). Information from a child's education
records is protected under the Family Educational Rights and Privacy
Act of 1974, 20 U.S.C. 1232(g) (FERPA), and section 617(c) of the Act.
Under FERPA and section 617(c) of the Act, a child's education records
cannot be released to a State Medicaid agency without parental consent,
except for a few specified exceptions that do not include the release
of education records for insurance billing purposes. Parental consent
requires, among other things, that the parent be fully informed in his
or her native language, or other mode of communication, consistent with
Sec. 300.9. Thus, there is no need to change ``parental consent'' to
``informed consent,'' as recommended by one commenter. However, we
believe it would avoid confusion for the references to ``consent'' in
paragraphs (d) and (e) in Sec. 300.154 to be consistent. Therefore, we
will add a reference to Sec. 300.9 in Sec. 300.154(d)(2)(iv)(A) and
delete ``informed'' from Sec. 300.154(e)(1).
We believe obtaining parental consent each time the public agency
seeks to use a parent's public insurance or other public benefits to
provide or pay for a service is important to protect the privacy rights
of the parent and to ensure that the parent is fully informed of a
public agency's access to his or her public benefits or insurance and
the services paid by the public benefits or insurance program.
Therefore, we will revise Sec. 300.154(d)(2)(iv) to clarify that
parental consent is required each time the public agency seeks to use
the parent's public insurance or other public benefits. We do not
believe that it would be appropriate to include a provision permitting
waiver of parental consent in this circumstance, even where a public
agency makes reasonable efforts to obtain the required parental
consent. However, we agree with the commenter that a public agency
could satisfy parental consent requirements under FERPA and section
617(c) of the Act if the parent provided the required parental consent
to the State Medicaid agency, and the consent satisfied the Part B
definition of consent in Sec. 300.9.
We also believe that it is important to let parents know that their
refusal to allow access to their public benefits or insurance does not
relieve the public agency of its responsibility to ensure that all
required services are provided at no cost to the parents. We will,
therefore, add a new paragraph (B) to Sec. 300.154(d)(2)(iv) to make
this clear.
Finally, because we have referenced the definition of consent in
Sec. 300.9 throughout the rest of these regulations, rather than the
consent provisions in Sec. 300.622, we have removed the reference to
Sec. 300.622.
Changes: Section 300.154(d)(2)(iv) has been changed to clarify that
consent must be obtained each time the public agency seeks to access a
parent's public benefits or insurance and to clarify that a parent's
refusal to allow access to the parent's public benefits or insurance
does not relieve the public agency of its responsibility to ensure that
all required services are provided at no cost to the parent. The
reference to Sec. 300.622 has been removed and we have added
``consistent with Sec. 300.9'' following ``parental consent'' in Sec.
300.154(d)(2)(iv)(A). For consistency, we have removed ``informed''
before ``consent'' in Sec. 300.154(e)(1).
Comment: One commenter stated that LEAs and agencies that, by law,
must provide educational services should not be allowed to use public
benefits or insurance to pay for these programs. One commenter
suggested that the Act be more closely aligned with the Medicaid laws.
One commenter requested requiring public benefits or insurance
agencies, when paying for special education, to meet the standards of
the Act, and not the standards for medical environments.
Discussion: We disagree with the comment that LEAs and other public
agencies responsible for providing special education and related
services to children with disabilities should not be allowed to use
public benefits or insurance to pay for these services. Pursuant to
section 612(a)(12) of the Act, if a child is covered by a public
benefits or insurance program and there is no cost to the family or the
child in using the benefits of that program to support a service
included in a child's IEP, the public agency is encouraged to use the
public benefits or insurance to the extent possible. We believe public
benefits or insurance are important resources for LEAs and other public
agencies to access, when appropriate, to assist in meeting their
obligation to make FAPE available to all children who are eligible to
receive services.
Section 300.103 retains the Department's longstanding provision
that clarifies that each State may use whatever State, local, Federal,
and private sources of support are available in the State to meet the
requirements of part 300. Nothing in part 300 relieves an insurer or
similar third party from an otherwise valid obligation to provide or
pay for services provided to a child with a disability.
The Act does not give the Department the authority to impose the
standards of the Act on public benefits or insurance agencies, when
paying for special education. If, however, a third party provider, such
as a public benefits or insurance company, is unable to provide funding
for services outside a clinical setting or other specific setting, the
public agency cannot use the third party provider's inability to
provide such funding as an appropriate justification for not providing
a child with a disability FAPE in the LRE. Nothing in part 300 alters
the requirements imposed on a State Medicaid agency, or any other
agency administering a public benefits or insurance program by Federal
statute, regulation, or policy under Title XIX or
[[Page 46609]]
Title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396(v)
and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or
insurance program. See section 612(a)(12) and (e) of the Act.
We believe the regulations are sufficiently aligned with the
Medicaid program and consistent with the Act and no further
clarification is necessary.
Changes: None.
Comment: One commenter requested clarifying that a child cannot be
denied Medicaid-supported medical services merely because he or she
receives educational services funded by Medicaid.
Discussion: We do not believe further clarification is necessary
because Sec. 300.154(d)(2) is sufficiently clear that the child's
receipt of Medicaid-funded educational services, consistent with the
Act and these regulations, should not deny the child receipt of other
services for which he or she may be eligible under Medicaid or other
noneducational programs. Further, Sec. 300.103(b) provides that
nothing in part 300 relieves an insurer or third party from an
otherwise valid obligation to pay for services provided to a child with
a disability.
Changes: None.
Comment: One commenter stated that LEAs and agencies that, by law,
must provide educational services should not be allowed to use public
benefits or insurance to pay for these programs. One commenter
suggested that the Act be more closely aligned with the Medicaid laws.
One commenter requested requiring public benefits or insurance
agencies, when paying for special education, to meet the standards of
the Act, and not the standards for medical environments.
Discussion: We disagree with the comment that LEAs and other public
agencies responsible for providing special education and related
services to children with disabilities should not be allowed to use
public benefits or insurance to pay for these services. Pursuant to
section 612(a)(12) of the Act, if a child is covered by a public
benefits or insurance program and there is no cost to the family or the
child in using the benefits of that program to support a service
included in a child's IEP, the public agency is encouraged to use the
public benefits or insurance to the extent possible. We believe public
benefits or insurance are important resources for LEAs and other public
agencies to access, when appropriate, to assist in meeting their
obligation to make FAPE available to all children who are eligible to
receive services.
Section 300.103 retains the Department's longstanding provision
that clarifies that each State may use whatever State, local, Federal,
and private sources of support are available in the State to meet the
requirements of part 300. Nothing in part 300 relieves an insurer or
similar third party from an otherwise valid obligation to provide or
pay for services provided to a child with a disability.
The Act does not give the Department the authority to impose the
standards of the Act on public benefits or insurance agencies, when
paying for special education. If, however, a third party provider, such
as a public benefits or insurance company, is unable to provide funding
for services outside a clinical setting or other specific setting, the
public agency cannot use the third party provider's inability to
provide such funding as an appropriate justification for not providing
a child with a disability FAPE in the LRE. Nothing in part 300 alters
the requirements imposed on a State Medicaid agency, or any other
agency administering a public benefits or insurance program by Federal
statute, regulation, or policy under Title XIX or Title XXI of the
Social Security Act, 42 U.S.C. 1396 through 1396(v) and 42 U.S.C.
1397aa through 1397jj, or any other public benefits or insurance
program. See section 612(a)(12) and (e) of the Act.
We believe the regulations are sufficiently aligned with the
Medicaid program and consistent with the Act and no further
clarification is necessary.
Changes: None.
Comment: One commenter requested clarifying that a child cannot be
denied Medicaid-supported medical services merely because he or she
receives educational services funded by Medicaid.
Discussion: We do not believe further clarification is necessary
because Sec. 300.154(d)(2) is sufficiently clear that the child's
receipt of Medicaid-funded educational services, consistent with the
Act and these regulations, should not deny the child receipt of other
services for which he or she may be eligible under Medicaid or other
noneducational programs. Further, Sec. 300.103(b) provides that
nothing in part 300 relieves an insurer or third party from an
otherwise valid obligation to pay for services provided to a child with
a disability.
Changes: None.
Personnel Qualifications (Sec. 300.156)
Comment: One commenter requested that Sec. 300.156 use the term
``standards'' when referring to personnel qualifications.
Discussion: We are not changing Sec. 300.156 because its language
follows the specific language in section 612(a)(14) of the Act. Current
Sec. 300.136 refers to ``personnel standards'' but was removed
consistent with the changes in section 612(a)(14) of the Act.
Changes: None.
Comment: Some commenters requested that the personnel qualification
requirements in Sec. 300.156 apply to personnel who provide travel
instruction and teachers of children with visual impairments. Other
commenters requested that personnel who provide therapeutic recreation
services be required to meet the personnel qualifications. Some
commenters requested that the personnel qualifications apply to
preschool special education teachers.
Discussion: It is not necessary to list the specific personnel who
provide services to children with disabilities under the Act and to
whom the requirements in Sec. 300.156 apply because the regulations
are sufficiently clear that all needed personnel are covered. This
includes personnel who provide travel instruction or therapeutic
recreation services; teachers of children with visual impairments, if
such personnel are necessary to carry out the purposes of this part;
and preschool teachers in States where preschool teachers are
considered elementary school teachers. Section 300.156(a), consistent
with section 612(a)(14)(A) of the Act, requires each SEA to establish
and maintain personnel qualification requirements to ensure that
personnel necessary to carry out the purposes of Part B of the Act and
part 300 are appropriately and adequately prepared and trained, and
have the content knowledge and skills to serve children with
disabilities.
Changes: None.
Comment: One commenter stated that the regulations should define
what it means to be qualified to provide services to children with
disabilities under the Act. The commenter stated that the regulations
do not include any requirements for general education teachers or
administrators who are involved in providing instruction and services
for children in special education.
Discussion: It is not necessary to change the regulations to define
what it means to be qualified to provide services because we believe
that, aside from the ``highly qualified'' requirements for teachers and
special education teachers in ESEA and the Act, other personnel
qualifications are appropriately left to the States, in light of the
variability in State circumstances. Further, Sec. 300.156, consistent
with section 612(a)(14) of the Act, makes it clear that it is the
responsibility of the
[[Page 46610]]
SEA, not the Federal government, to establish and maintain
qualifications for personnel who provide services to children with
disabilities under the Act.
Changes: None.
Comment: One commenter objected to the removal of the requirements
for a comprehensive system of personnel development in current Sec.
300.135. The commenter also stated that regular education teachers need
to be trained to work with children with disabilities to ensure that
their inclusion in the regular classroom is successful.
Discussion: Current Sec. 300.135 required States to have in effect
a system of personnel development to ensure an adequate supply of
qualified special education, regular education, and related services
personnel. Section 612(a)(14) of the Act removed this requirement. The
removal of current Sec. 300.135, however, does not diminish the
responsibility of each State to establish and maintain qualifications
to ensure that personnel (including regular education teachers)
necessary to carry out the purposes of the Act are appropriately and
adequately prepared and trained, consistent with Sec. 300.156.
Changes: None.
Comment: Some commenters recommended that the regulations include
language from note 97 of the Conf. Rpt., p. 192, which requires SEAs to
establish rigorous qualifications for related services providers to
ensure that children with disabilities receive the appropriate quality
and quantity of care. Several commenters requested that the regulations
require SEAs to consult with LEAs, other State agencies, the disability
community, and professional organizations regarding appropriate
qualifications for related services providers and different service
delivery models (e.g., consultative, supervisory, and collaborative
models).
Discussion: We believe that States already have sufficient
incentive to ensure that related services providers provide services of
appropriate quality so that children with disabilities can achieve to
high standards and that further regulation in this area is not
necessary. Section 300.156(b), consistent with section 612(a)(14)(B) of
the Act, includes the qualifications for related services personnel.
There is nothing in the Act that requires SEAs to consult with LEAs,
other State agencies, or other groups and organizations to determine
the appropriate qualifications for related services providers and the
use of different service delivery models, and while we agree that this
is good practice and encourage SEAs to participate in such
consultation, we do not believe that we should regulate in this manner.
States should have the flexibility, based on each State's unique
circumstances, to determine how best to establish and maintain
standards for all personnel who are providers of special education and
related services.
Changes: None.
Comment: Numerous commenters objected to Sec. 300.156(b) and the
removal of the requirement in current Sec. 300.136 for State
professional requirements to be based on the highest requirements in
the State. The commenters stated that the removal of this requirement
relaxes the qualification standards for speech-language pathologists
and other related services personnel. Several commenters stated that
speech-language professionals should be required to have advanced
degrees (i.e., master's level) because a bachelor's degree does not
provide adequate preparation. Many commenters expressed concern that
the requirements in Sec. 300.156(b) will lead to a decline in the
quality of related services provided to children with disabilities in
public schools. Other commenters expressed concern that increasing the
standards will exacerbate the shortage of related services personnel
experienced by large urban school districts.
Discussion: We are not changing Sec. 300.156 because it reflects
the specific language in section 612(a)(14) of the Act, which was
intended to provide greater flexibility to SEAs to establish
appropriate personnel standards, including the standards for speech-
language pathologists. As indicated in note 97 of the Conf. Rpt., p.
192, section 612(a)(14) of the Act removes the requirement for State
professional requirements to be based on the highest requirements in
the State because of concerns that the previous law, regarding the
qualifications of related services providers, established an
unreasonable standard for SEAs to meet, and as a result, led to a
shortage of related services providers for children with disabilities.
We believe that States can exercise the flexibility provided in Sec.
300.156 and section 612(a)(14) of the Act while ensuring appropriate
services for children with disabilities without additional regulation.
Changes: None.
Comment: Many commenters expressed concern that Sec. 300.156(b)
establishes qualifications for related services providers in public
schools that are less rigorous than the qualifications for related
services providers who provide Medicaid services or services in other
public settings, such as hospitals. The commenters stated that less
rigorous qualifications would result in a two-tiered system in which
related services providers in public schools will be less qualified
than related services providers in other public agencies. Another
commenter expressed concern that the relaxation of standards for
speech-language pathologists would cause LEAs to lose Medicaid funds
that are used to assist children with disabilities.
Discussion: Section 300.156, consistent with section
612(a)(14)(B)(i) of the Act, clarifies that it is up to each SEA to
establish qualifications for personnel to carry out the purposes of the
Act. This will require weighing the various policy concerns unique to
each State. The qualifications of related services providers required
under Medicaid, or in hospitals and other public settings, and the fact
that Medicaid will not pay for providers who do not meet Medicaid
provider qualifications should serve as an incentive for States that
want to bill for medical services on children's IEPs to impose
consistent requirements for qualifications of related services
providers.
Changes: None.
Comment: Some commenters stated that related services personnel
should be considered to have met the qualifications in Sec.
300.156(b)(1), regarding State-recognized certification, licensing,
registration or other comparable requirements, if such personnel hold
an academic degree consistent with their profession's national
certification or State license to practice; demonstrate satisfactory
progress toward full certification in the schools as prescribed by the
State; and assume related services personnel functions for a specified
period not to exceed three years.
A few commenters objected to the requirement that related services
personnel must not have had certification or licensure requirements
waived. One commenter stated that emergency, temporary, or provisional
certificates are necessary for professionals relocating from different
States or different countries, and predicted that professionals with
emergency, temporary, or provisional certification would work for
contract agencies to bypass the requirements.
Discussion: We believe the provisions in Sec. 300.156(b) that
State qualifications for related services personnel must include
qualifications that are consistent with any State-approved or State-
recognized certification, licensing, registration, or other comparable
requirements that apply to the professional discipline in which those
personnel are providing special education or related services, are
[[Page 46611]]
sufficient to ensure related services personnel are qualified to
provide appropriate services to children with disabilities while
maintaining the States' flexibility to establish appropriate personnel
standards for related services personnel. We do not believe, therefore,
that it is necessary to include additional regulation as suggested by
commenters.
Section 300.156(b)(2)(ii) tracks the statutory requirement in
section 612(a)(14)(B)(ii) of the Act, which requires that related
services personnel not have certification or licensure requirements
waived on an emergency, temporary, or provisional basis. We do not
believe this provision unnecessarily hinders States from hiring
professionals from other States or countries. States, in examining the
credentials of prospective related services personnel from other States
or countries, may find that their existing certification or licensure
requirements are ones that these related services personnel could
readily meet. Because each State has full authority to define and
enforce its own requirements that personnel must meet in order to
receive full State certification or licensure, States that employ
related services personnel from other States or countries may,
consistent with State law and policy, consider establishing a separate
category of certification that would differ from emergency, temporary,
or provisional certification in that the State would not be waiving any
training or experiential requirements.
Changes: None.
Comment: One commenter recommended using nationally recognized
standards to determine the qualifications of related services
personnel. Another commenter recommended requiring SEAs to consider
current professional standards in establishing appropriate
qualifications for related services personnel. One commenter requested
adding language to the regulations to prevent professional
organizations from establishing personnel standards for related
services personnel that override standards set by the SEA.
Discussion: We do not believe it is necessary to regulate as
suggested by the commenters because these matters are better left to
States to decide as States are in the best position to determine
appropriate professional requirements for their States. There is
nothing in the Act that requires an SEA to determine qualifications of
related services personnel based on nationally recognized standards or
current professional standards. Professional organizations may
establish personnel standards for related services personnel that
differ from the standards established by a State, but section
612(a)(14) of the Act clarifies that the State is responsible for
establishing and maintaining personnel qualifications to ensure that
related services personnel have the knowledge and skills to serve
children with disabilities under the Act.
Changes: None.
Comment: A few commenters requested that the regulations specify
that an SEA, and not the State, has the authority to establish
certification and licensure qualifications of related services
personnel.
Discussion: We do not believe it is necessary to change the
regulation because Sec. 300.156(b), which follows the language in
section 612(a)(14)(B) of the Act, clarifies that the SEA must establish
qualifications for related services personnel that are consistent with
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to related
services personnel.
Changes: None.
Comment: Some commenters requested that the regulations require
related services providers who do not meet existing State standards to
be supervised by qualified personnel.
Discussion: Related services providers who do not meet the
personnel qualifications established by the SEA would not be considered
qualified to serve children with disabilities under the Act even with
supervision by qualified personnel. Section 300.156(d), consistent with
section 612(a)(14)(D) of the Act, clarifies that each State must ensure
that LEAs take measurable steps to recruit, hire, train, and retain
highly qualified special education personnel to provide special
education and related services to children with disabilities under the
Act.
Changes: None.
Comment: Some commenters recommended that the regulations require
high standards for paraprofessionals. Several commenters requested
guidance on the appropriate use of paraprofessionals to ensure that
paraprofessionals and assistants are not used as a means of
circumventing certification and licensing requirements for related
services providers. A few commenters requested language clarifying that
the elimination of the requirement that State professional requirements
be based on the highest requirements in the State in current Sec.
300.136(b) must not be used to justify the inappropriate use of
paraprofessionals or related services providers. Another commenter
asked that the regulations require States to ensure that
paraprofessionals are properly supervised at all times. One commenter
stated that the regulations should clarify the use of State standards
for speech-language pathology paraprofessionals.
Discussion: We believe the provisions in Sec. 300.156, consistent
with section 612(a)(14) of the Act, are sufficient to ensure that
paraprofessionals meet high standards and that including additional
requirements in these regulations is unnecessary. These provisions
require an SEA to establish and maintain qualifications to ensure that
personnel, including paraprofessionals, are appropriately and
adequately prepared and trained, and have the content knowledge and
skills to serve children with disabilities; and require the
qualifications for paraprofessionals to be consistent with any State-
approved or State-recognized certification, licensing, registration, or
other comparable requirements that apply to the professional discipline
in which those personnel are providing special education or related
services. In addition, the ESEA requires that paraprofessionals working
in a program supported by title I of the ESEA, including special
education paraprofessionals who assist in instruction in title I-funded
programs, have at least an associate's degree, have completed at least
two years of college, or meet a rigorous standard of quality and
demonstrate, through a formal State or local assessment, knowledge of,
and the ability to assist in instruction in reading, writing, and
mathematics, reading readiness, writing readiness, or mathematics
readiness, as appropriate. Paraprofessionals in title I schools do not
need to meet these requirements if their role does not involve
instructional support, such as special education paraprofessionals who
solely provide personal care services. For more information on the ESEA
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119
of the ESEA, and the Department's nonregulatory guidance, Title I
Paraprofessionals (March 1, 2004), which can be found on the
Department's Web site at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/policy/elsec/guid/paraguidance.pdf
.
With regard to the commenter requesting that the regulations
clarify the use of State standards for speech-language
paraprofessionals, we do not believe it is appropriate to include
clarification regarding a specific discipline in these regulations
because the Act requires States to establish and maintain
qualifications to ensure that paraprofessionals, including speech-
language paraprofessionals, are
[[Page 46612]]
appropriately and adequately prepared and trained.
Section 300.156(b)(2)(iii), consistent with section
612(a)(14)(B)(iii) of the Act, does specifically allow
paraprofessionals and assistants who are appropriately trained and
supervised, in accordance with State law, regulation, or written
policy, to assist in providing special education and related services
to children with disabilities under the Act. However, this provision
should not be construed to permit or encourage the use of
paraprofessionals as a replacement for teachers or related services
providers who meet State qualification standards. To the contrary,
using paraprofessionals and assistants as teachers or related services
providers would be inconsistent with the State's duty to ensure that
personnel necessary to carry out the purposes of Part B of the Act are
appropriately and adequately prepared and trained. Paraprofessionals in
public schools are not directly responsible for the provision of
special education and related services to children with disabilities;
rather, these aides provide special education and related services to
children with disabilities only under the supervision of special
education and related services personnel. We believe the provision in
Sec. 300.156(b)(2)(iii) sufficiently ensures that paraprofessionals
and assistants are adequately supervised and further clarification in
these regulations is unnecessary.
The Act makes clear that the use of paraprofessionals and
assistants who are appropriately trained and supervised must be
contingent on State law, regulation, and written policy giving States
the option of determining whether paraprofessionals and assistants can
be used to assist in the provision of special education and related
services under Part B of the Act, and, if so, to what extent their use
would be permissible. However, it is critical that States that use
paraprofessionals and assistants to assist in providing special
education and related services to children with disabilities do so in a
manner that is consistent with the rights of children with disabilities
to FAPE under Part B of the Act. There is no need to provide additional
guidance on how States and LEAs should use paraprofessionals and
assistants because States have the flexibility to determine whether to
use them, and, if so, to determine the scope of their responsibilities.
Changes: None.
Comment: One commenter recommended different requirements for
paraprofessionals who perform routine tasks and those who perform
specific activities to assist in the provision of special education and
related services.
Discussion: We do not see the need to make a change to the
regulations as suggested by the commenter because, under Sec. 300.156,
consistent with section 612(a)(14) of the Act, SEAs have the
responsibility for establishing and maintaining qualifications to
ensure that personnel necessary to carry out the purposes of this part
are appropriately and adequately prepared and trained. Furthermore,
SEAs and LEAs have the flexibility to determine the tasks and
activities to be performed by paraprofessionals and assistants, as long
as they are consistent with the rights of children with disabilities to
FAPE.
It should be kept in mind, however, that the ESEA has different
requirements for paraprofessionals, including special education
paraprofessionals, who assist in instruction in title I schools versus
paraprofessionals in title I schools who do not provide instructional
support, such as special education paraprofessionals who solely provide
personal care services.
Changes: None.
Comment: A number of comments were received on the qualifications
for special education teachers in Sec. 300.156(c) that were similar to
the comments received regarding the definition of highly qualified
special education teacher in Sec. 300.18.
Discussion: We combined and responded to these comments with the
comments received in response to the requirements in Sec. 300.18.
Changes: None.
Comment: Some commenters requested that the regulations allow
alternative routes to certification for related services personnel and
other non-teaching personnel, just as such routes are allowed for
highly qualified teachers.
Discussion: As we stated earlier in this section, section
612(a)(14)(B) of the Act, clarifies that the SEA must establish
qualifications for related services personnel that are consistent with
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to related
services personnel. While the Act does not address alternative routes
to certification programs for related services personnel or other non-
teaching personnel, there is nothing in the Act or the regulations that
would preclude a State from providing for alternate routes for
certification for related services personnel or other non-teaching
personnel. It is, however, up to a State to determine whether related
services or non-teaching personnel participating in alternative routes
to certification programs meet personnel requirements established by
the State, consistent with the requirements in Sec. 300.156 and
section 612(a)(14) of the Act.
Changes: None.
Comment: Many commenters recommended that Sec. 300.156 provide
more guidance to ensure that States and LEAs implement proven
strategies for recruiting and retaining qualified personnel. A few
commenters stated that this is especially important for speech-language
pathologists because large caseloads, increased paperwork, and lack of
time for planning and collaboration have been shown to contribute to
their burn out and attrition. Several commenters recommended that
strategies to recruit and retain qualified personnel include reasonable
workloads, improved working conditions, incentive programs, salary
supplements, loan forgiveness, tuition assistance, signing bonuses,
streamlined application processes, State and national advertising
venues, school and university partnerships, release time for
professional development, certification reciprocity between States,
grants to LEAs for recruitment and retention programs, alternate
professional preparation models, caseload size standards, and classroom
size standards.
One commenter requested that the requirements to recruit, hire,
train, and retain highly qualified personnel in Sec. 300.156(d) apply
to paraprofessionals who provide special education and related
services.
Discussion: The list of strategies recommended by the commenters
includes many strategies that may be effective in recruiting and
retaining highly qualified personnel; however, we do not believe it is
appropriate to include these or other strategies in our regulations
because recruitment and retention strategies vary depending on the
unique needs of each State and LEA. States and LEAs are in the best
position to determine the most effective recruitment and retention
strategies for their location.
With regard to the comment regarding the applicability of Sec.
300.156(d) to paraprofessionals who provide special education and
related services, Sec. 300.156(d), consistent with section
612(a)(14)(C) of the Act, applies to all personnel who provide special
education and related services under the Act, including
paraprofessionals.
Changes: None.
Comment: A few commenters stated that the rule of construction in
Sec. 300.156(e) is inconsistent with the rule
[[Page 46613]]
of construction in the definition of highly qualified teacher in
proposed Sec. 300.18(e). Some commenters requested that the
regulations clarify that the rule of construction in Sec. 300.156(e)
is applicable to both administrative and judicial actions.
A few commenters requested that the regulations specify that a
parent may file a State complaint with the State regarding failure of
their child to receive FAPE because staff is not highly qualified.
However, several commenters stated that parents should not be allowed
to file a State complaint under Sec. Sec. 300.151 through 300.153
regarding staff qualifications.
Discussion: We agree that the rules of construction in both
proposed Sec. 300.156(e) and proposed Sec. 300.18(e) must be revised
so that both rules are the same. The changes will clarify that a parent
or student may not file a due process complaint on behalf of a student,
or file a judicial action on behalf of a class of students for the
failure of a particular SEA or LEA employee to be highly qualified;
however, a parent may file a complaint about staff qualifications with
the SEA. In addition to permitting a parent to file a State complaint
with the SEA, an organization or an individual may also file a
complaint about staff qualifications with the SEA, consistent with the
State complaint procedures in Sec. Sec. 300.151 through 300.153. We
believe that this is appropriate given the wording of section
612(a)(14)(E) of the Act `` * * * or to prevent a parent from filing a
complaint about staff qualifications with the State educational
agency'' and incorporated in the regulations in Sec. 300.156(e) and
new Sec. 300.18(f) (proposed Sec. 300.18(e)). By incorporating the
wording from the construction clause in section 612(a)(14)(E) of the
Act in the regulations as previously noted, parents and other
interested parties, may seek compliance through the State complaint
process.
Changes: We have added ``or a class of students'' to Sec.
300.156(e) to clarify that a judicial action on behalf of a class of
students may not be filed for failure of a particular SEA or LEA
employee to be highly qualified. We have substituted the word,
``employee'' for ``staff person'' to be more precise and for
consistency with the rule of construction in new Sec. 300.18(f)
(proposed Sec. 300.18(e)). We have also reformatted Sec. 300.156(e).
Comment: Some commenters recommended adding language to the
regulations restricting a parent's right to file a complaint regarding
an LEA's failure to take measurable steps to recruit, hire, train, and
retain highly qualified personnel.
Discussion: We believe the regulations do not need clarification.
Section Sec. 300.151(a) is sufficiently clear that an organization or
individual may file a State complaint under Sec. Sec. 300.151 through
300.153 alleging a violation of a requirement of Part B of the Act or
of this part. This includes the requirement that an LEA take measurable
steps to recruit, hire, train, and retain highly qualified personnel
consistent with section 612(a)(14)(D) of the Act.
Changes: None.
Comment: Some commenters requested that the regulations clarify
that, unless the State has statutory control over district staffing,
parents cannot obtain compensatory damages or services or a private
school placement based on the lack of highly qualified personnel.
Discussion: We do not agree that the exception requested by the
commenter should be added to the regulations because new Sec.
300.18(f) (proposed Sec. 300.18(e)), and Sec. 300.156(e) are
sufficiently clear that nothing in part 300 shall be construed to
create a right of action on behalf of an individual child for the
failure of a particular SEA or LEA staff person to be highly qualified.
Changes: None.
Comment: One commenter recommended that the qualifications of all
personnel should be made a matter of public record.
Discussion: To do as the commenter recommends would add burden for
local school personnel and it is not required under the Act. In
contrast, title I of the ESEA required that LEAs receiving title I
funds provide parents, at their request, the qualifications of their
children's classroom teachers. There is nothing in the Act or these
regulations, however, which would prevent an SEA or LEA from adopting
such a policy should it wish to do so. In the absence of a
congressional requirement in the Act, such policies are matters best
left to State law.
Section 1111(h)(6) of the ESEA requires LEAs to inform parents
about the professional qualifications of their children's classroom
teachers. The ESEA requires that at the beginning of each school year,
an LEA that accepts title I, part A funding must notify parents of
students in title I schools that they can request information regarding
their children's classroom teachers, including, at a minimum: (1)
Whether the teacher has met the State requirements for licensure and
certification for the grade levels and subject-matters in which the
teacher provides instruction; (2) whether the teacher is teaching under
emergency or other provisional status through which State qualification
or licensing criteria have been waived; (3) the college major and any
other graduate certification or degree held by the teacher, and the
field of discipline of the certification or degree; and (4) whether the
child is provided services by paraprofessionals, and if so, their
qualifications. In addition, each title I school must provide each
parent timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks by, a teacher who is not
highly qualified. These requirements apply only to special education
teachers who teach core academic subjects in Title I schools.
Changes: None.
Performance Goals and Indicators (Sec. 300.157)
Comment: Several commenters recommended that the regulations retain
current Sec. 300.137(a)(2), which requires that States have goals for
the performance of children with disabilities in the State that are
consistent, to the maximum extent appropriate, with other goals and
standards for all children established by the State. The commenters
specifically objected to the removal of the word ``maximum'' before
``extent appropriate;'' and the removal of the word ``all'' before
``children'' in Sec. 300.157(a)(4).
Discussion: Section 612(a)(15)(A)(iv) of the Act specifically
removed the words in current Sec. 300.137(a)(2) that the comment
references. Therefore, we believe that it would be contrary to the
intent of the statutory drafters to restore these words to the
regulatory provision.
Changes: None.
Comment: A few commenters requested that the regulations in Sec.
300.156(b) require States to involve parent centers in establishing the
performance goals and indicators and measurable annual objectives for
children with disabilities.
Discussion: We encourage broad stakeholder involvement in the
development of performance goals, indicators, and annual objectives for
children with disabilities, including the involvement of parent
centers. We see no need to single out a particular group, however. The
regulations in Sec. 300.165(a) already require specific public
participation in the adoption of policies and procedures needed to
demonstrate eligibility under Part B, including this requirement.
Changes: None.
[[Page 46614]]
Participation in Assessments (Proposed Sec. 300.160)
Comment: None.
Discussion: Participation in assessments is the subject of a notice
of proposed rulemaking published in the Federal Register on December
15, 2005 (70 FR 74624) to amend the regulations governing programs
under title I of the ESEA and Part B of the Act, regarding additional
flexibility for States to measure the achievement of children with
disabilities based on modified achievement standards.
Changes: Therefore, we are removing proposed Sec. 300.160 and
designating the section as ``Reserved.''
Supplementation of State, Local, and Other Federal Funds (Sec.
300.162)
Comment: One commenter disagreed with the removal of current Sec.
300.155, which requires that States have policies and procedures on
file with the Secretary to ensure that funds paid to the State under
Part B of the Act are spent in accordance with the provisions of Part
B.
Discussion: Current Sec. 300.155 was removed from these
regulations consistent with section 612(a)(17) of the Act. The removal
of this requirement is also consistent with section 612(a) of the Act,
which requires a State to submit a plan that provides assurances to the
Secretary that the State has in effect policies and procedures to
ensure that the State meets the requirements of the Act rather than
submitting the actual policies and procedures to the Department. To
alleviate burden, Congress removed the statutory provisions which
required that States have policies and procedures on file with the
Secretary to ensure that funds paid to the State under Part B of the
Act are spent in accordance with the provisions of Part B. OSEP
continues to have responsibility to ensure that States are properly
implementing the Act. Given the statutory change that Congress made to
remove the prior requirement, we believe it would be inappropriate to
include it in these regulations.
Changes: None.
Maintenance of State Financial Support (Sec. 300.163)
Comment: One commenter requested that Sec. 300.163(c)(1),
regarding waivers for maintenance of State financial support for
exceptional or uncontrollable circumstances, provide examples of what
would be considered a precipitous and unforeseen decline in the State's
financial resources.
Discussion: We decline to limit the Secretary's discretion in these
matters in the abstract. The Secretary makes the determinations
regarding these waivers on a case-by-case basis and given the facts and
circumstances at the time such a request is made.
Changes: None.
Public Participation (Sec. 300.165)
Comment: Several commenters objected to the removal of current
Sec. Sec. 300.280 through 300.284, regarding public participation, and
recommended that all provisions, including those related to public
hearings, comment periods, and review of public comments be restored.
Discussion: We do not believe it is necessary to retain in the
regulations the requirements in current Sec. Sec. 300.280 through
300.284 because the provisions in Sec. 300.165 and GEPA, in 20 U.S.C.
1232d(b)(7), provide sufficient opportunities for public participation.
We also believe retaining the requirements in Sec. Sec. 300.280
through 300.284 would place unnecessary regulatory burden on States.
Section 300.165(a) incorporates the language in section 612(a)(19) of
the Act, regarding public participation in the adoption of policies and
procedures to implement Part B of the Act, and requires States to
ensure that there are public hearings, adequate notice of hearings, and
an opportunity for comment available to the general public.
Furthermore, paragraph (b) of this section requires States to comply
with the public participation requirements of GEPA, in 20 U.S.C.
1232d(b)(7), before submitting a State plan under this part. In
accordance with the GEPA requirement, the State must assure that it
will provide reasonable opportunities for participation by local
agencies, representatives of the class of individuals affected by
programs under this part and other interested institutions,
organizations, and individuals in the planning for the operation of
programs under this part. GEPA also requires that the State publish
each proposed State plan under this part, in a manner that will ensure
circulation throughout the State, at least 60 days prior to the date on
which the State plan is submitted to the Secretary or on which the
State plan becomes effective, whichever occurs earlier, with an
opportunity for public comments on such plan to be accepted for at
least 30 days. In addition, the State must comply with any State-
specific public participation requirements in adopting policies and
procedures related to Part B of the Act.
Changes: None.
Comment: One commenter requested that the regulations define the
meaning of ``adequate notice'' as it is used in Sec. 300.165(a) to
ensure that there is adequate notice of public hearings prior to
adopting any policies and procedures needed to comply with Part B of
the Act.
Discussion: We do not think it is appropriate or necessary to
include in the regulations a definition of ``adequate notice'' because
what constitutes ``adequate notice'' will vary depending on the unique
circumstances in each State and we believe States should have the
flexibility of determining and applying a workable and reasonable
standard that meets their circumstances to ensure public participation
at public hearings. We believe it would be reasonable for the State to
assume that it provided adequate notice if, at its public hearings,
there were sufficient representatives of the general public, including
individuals with disabilities and parents of children with
disabilities, in attendance.
Changes: None.
Comment: One commenter requested that the regulations require
States to provide notices of public hearings in multiple languages and
alternative formats.
Discussion: It is unnecessary to include regulations requiring
States to provide notice of public hearings in multiple languages and
alternative formats. Public agencies are required by other Federal
statutes to take appropriate actions to ensure that the public has
access, in alternative formats and languages other than English, to
public hearings. The other Federal statutory provisions that apply in
this regard are section 504 of the Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR part 104 (prohibiting discrimination
on the basis of disability by recipients of Federal financial
assistance), title II of the Americans With Disabilities Act and its
implementing regulations in 28 CFR part 35 (prohibiting discrimination
on the basis of disability by public entities, regardless of receipt of
Federal funds), and title VI of the Civil Rights Act of 1964 and its
implementing regulations in 34 CFR part 100 (prohibiting discrimination
on the basis of race, color, or national origin by recipients of
Federal financial assistance).
Changes: None.
Comment: One commenter requested that the regulations require
States to work with the parent centers to identify appropriate
locations and times for public hearings.
Discussion: There is nothing in the Act or these regulations that
would prohibit a State from working with the parent centers to identify
appropriate
[[Page 46615]]
locations and times for public hearings, but we see no need to require
States to do so. We believe that this matter should be left to State
discretion.
Changes: None.
Rule of Construction (Sec. 300.166)
Comment: One commenter requested clarification regarding the use of
Federal funds to offset decreases in State formula allocations to LEAs
that use attendance, enrollment, or inflation as elements of the State
funding formula for special education.
Discussion: Section 300.166 was added to incorporate language in
section 612(a)(20) of the Act. It specifies that States with laws that
require a specific level of funding to their LEAs cannot use Federal
Part B funds for this purpose.
Changes: None.
State Advisory Panel
State Advisory Panel (Sec. 300.167)
Comment: One commenter stated that Sec. Sec. 300.167 through
300.169 are unnecessary and do not add any requirements beyond those in
section 612(a)(21) of the Act. The commenter recommended removing these
requirements and stated that they can be adequately implemented through
guidance provided by the Department and not through regulation.
Discussion: The requirements of the State advisory panel in
Sec. Sec. 300.167 through 300.169 reflect the specific language in
section 612(a)(21) of the Act. We believe it is necessary to include
these statutory requirements in the regulations to provide parents,
public agencies, and others with information on the requirements
applicable to State advisory panels.
Changes: None.
Comment: Several commenters recommended retaining the procedures to
govern State advisory panels in current Sec. 300.653 and strengthening
the requirements of notice and opportunity for public comment at State
advisory panel meetings by mandating publication of meeting dates,
agendas, and minutes on Web sites. A few commenters stated that
eliminating the notice requirements and the opportunity to participate
in meetings in current Sec. 300.653(d) and (e) will result in fewer
low income, hearing-impaired, and foreign-language speaking parents
attending State advisory panel meetings. One commenter expressed
concern that the removal of current Sec. 300.653 will result in less
panel visibility, less public participation, and that State advisory
panels will become ``rubber-stamps'' for positions taken by State
officials. One commenter stated that the removal of the requirements in
current Sec. 300.653 weakens the protection of children with
disabilities, and, therefore, violates section 607(b) of the Act.
Discussion: The requirements in current Sec. 300.653 were removed
to provide greater State flexibility in the operation of advisory
panels. We do not believe the removal of current Sec. 300.653 will
mean that the States will not ensure that State advisory panel meetings
are announced in advance and open to the public because States
generally have adequate sunshine laws that ensure public access to
governmental agency meetings. We do not believe it is necessary to
require that information regarding State advisory panel meetings be
posted on State Web sites because sunshine laws generally contain
provisions regarding meeting notices, agendas, and the availability of
minutes of public meetings. However, it is important that individuals
consult the laws governing their State and locality on the issue of
open meetings and public access.
Section 607(b)(2) of the Act provides that the Secretary may not
implement, or publish in final form, any regulation pursuant to the Act
that procedurally or substantively lessens the protections provided to
children with disabilities as embodied in regulations in effect on July
20, 1983. We do not believe removing from these regulations the
requirements in current Sec. 300.653 procedurally or substantively
lessens the protections provided to children with disabilities pursuant
to section 607(b)(2) of the Act because we do not view public notice of
advisory committee meetings to be a protection provided to children
with disabilities.
Changes: None.
Membership (Sec. 300.168)
Comment: We received numerous, specific requests to revise Sec.
300.168 to add to the list of individuals who can serve as members of
the State advisory panels. Some commenters recommended requiring State
advisory panels to include representatives from the Parent Training and
Information Centers and Community Parent Resource Centers funded by the
Department under sections 671 and 672 of the Act because their
representation would ensure a diverse group of people experienced with
children with different disabilities on the panels. One commenter
expressed concern that, without representation from these groups, panel
members would make recommendations based solely on their individual
circumstances and backgrounds. A few commenters requested including
school psychologists and other student support staff on State advisory
panels. One commenter suggested including a representative of a
residential treatment facility as a member on State advisory panels
because children in these facilities are a growing population and have
specialized needs. A few commenters requested adding representatives
from centers for independent living because these individuals are
experienced in advocating for people with disabilities. One commenter
suggested including State coordinators for education of homeless
children and youth. A few commenters suggested including disabled high
school and postsecondary students on the list because the intended
beneficiaries of the Act are often denied a voice. A few commenters
proposed requiring each State advisory panel to be racially,
culturally, linguistically, and socio-economically representative of
the State. One commenter expressed concern that the new regulations
could lead States to abruptly replace current panel members causing
discontinuity and decreasing expertise, and recommended phasing in the
new requirements and allowing panel members to complete their terms of
office.
Discussion: The membership of State advisory panels is described in
section 612(a)(21)(B) and (C) of the Act and the Department does not
agree that there is a need to require additional representatives or to
change the panel composition. However, nothing in the Act or these
regulations would prevent the appointment of additional
representatives, if a State elected to add these individuals. With
respect to the request to include State coordinators for education of
homeless children on the panels, State and local officials who carry
out activities under the McKinney-Vento Homeless Assistance Act are
already included in the list of individuals identified to serve on the
State advisory panels in Sec. 300.168(a)(5).
Section 612(a)(21)(B) of the Act, as reflected in Sec. 300.168,
requires the State advisory panel to be representative of the State
population and be composed of individuals involved in, or concerned
with, the education of children with disabilities. Also, the Act and
these regulations require a majority of the panel members to be
individuals with disabilities or parents of children with disabilities
(ages birth through 26). We also do not believe there is a need to
phase in the new requirements, as those members that do not need to
change should provide sufficient continuity of panel functions.
[[Page 46616]]
Changes: None.
Duties (Sec. 300.169)
Comment: A few commenters recommended requiring States to submit
any rules or regulations related to children with disabilities to the
State advisory panel for consideration before the rules are finalized.
One commenter requested requiring panel members to take positions on
State proposed rules and regulations regarding the education of
children with disabilities and offer their views to the appropriate
State agencies.
Discussion: Section 612(a)(21)(D) of the Act clearly specifies the
duties of the State advisory panel and these duties are accurately
reflected in Sec. 300.169. Paragraph (b) of this section clarifies
that the advisory panel must comment publicly on any State proposed
rules or regulations regarding the education of children with
disabilities. We believe Sec. 300.169(b) is sufficient to ensure that
the advisory panel has the opportunity to consider any State rules or
regulations before they are final and, accordingly, further regulatory
language is unnecessary. Further, we believe it is inappropriate to
require that panel members ``take positions'' on proposed rules and
regulations because to do so would be overly controlling of the
advisory panel and may impact the panel's ability to effectively meet
its statutory responsibility of providing public comment on State
proposed rules and regulations.
Changes: None.
Comment: Many commenters suggested retaining current Sec.
300.652(b), which requires State advisory panels to provide advice for
educating students with disabilities in adult correctional facilities.
A few of these commenters noted that students in adult correctional
facilities are members of one of the most vulnerable populations.
Discussion: Given the breadth of the State advisory panel's
statutory responsibilities we removed from the regulations all
nonstatutory mandates on the State advisory panel, including the
provision in current Sec. 300.652(b), regarding advising on the
education of eligible students with disabilities who have been
convicted as adults and have been incarcerated in adult prisons. We
believe placing such nonstatutory mandates on the State advisory panel
may hinder the advisory panel's ability to effectively provide policy
guidance with respect to special education and related services for
children with disabilities in the State. There is nothing, however,
that would prevent a State from assigning other responsibilities to its
State advisory panel, as long as those other duties do not prevent the
advisory panel from carrying out its responsibilities under the Act.
Changes: None.
Access to Instructional Materials (Sec. 300.172)
Comment: One commenter recommended including the National
Instructional Materials Accessibility Standard (NIMAS) in these
regulations.
Discussion: We agree with the commenter. The final NIMAS was
published in the Federal Register on July 19, 2006 (71 FR 41084) and
will be included as Appendix C to Part 300--National Instructional
Materials Accessibility Standard of these regulations. We will add
language in Sec. 300.172(a) to refer to this location and to reference
the publication date of the NIMAS in the Federal Register.
Changes: The final NIMAS has been added as appendix C to part 300.
We have added language in Sec. 300.172(a) to refer to the location of
the NIMAS in these regulations and the publication date of the NIMAS in
the Federal Register.
Comment: Several commenters expressed concern that the language
requiring States to adopt the NIMAS ``in a timely manner'' is ambiguous
and could lead to delays in providing instructional materials to
children with disabilities, inconsistencies across States, and
increased litigation. Several commenters requested that the regulations
specify a timeline for States to adopt the NIMAS. Some commenters
recommended requiring all States to adopt the NIMAS by December 3,
2006. However, one commenter stated that States should not be given a
deadline to adopt the NIMAS.
A number of commenters requested that the regulations define the
meaning of ``adopt'' in Sec. 300.172(a) and specify what States must
do to adopt the NIMAS. Several commenters recommended defining
``adopt'' to mean that the State, through regulatory or legislative
procedures, designates NIMAS as the only required source format for
publishers to convert print instructional materials into specialized
formats for children with disabilities. One commenter urged the
Department to define ``adopt'' to mean that a State must accept a NIMAS
file as satisfying the publisher's legal obligation to provide
accessible instructional materials. Other commenters recommended that
the regulations clearly state that adoption of the NIMAS means that
SEAs and LEAs must accept and use electronic copies of instructional
materials in the NIMAS format that are provided by the publishers.
Discussion: Section 300.172(a), consistent with section
612(a)(23)(A) of the Act, requires States to adopt the NIMAS in a
timely manner after the publication of the NIMAS in the Federal
Register for the purpose of providing instructional materials to blind
or other persons with print disabilities. As noted in the discussion to
the previous comment, the NIMAS is included as Appendix C to Part 300--
National Instructional Materials Accessibility Standard and was
published in the Federal Register on July 19, 2006 (71 FR 41084). The
Department believes that States should make every effort to adopt the
NIMAS in a timely manner following the publication of the NIMAS in the
Federal Register, recognizing that the timelines and requirements for
adopting new rules, policies, or procedures vary from State to State.
States choosing to coordinate with the NIMAC must, consistent with
section 612(a)(23)(C) of the Act and Sec. 300.172(c) of these
regulations, not later than December 3, 2006, as part of any print
instructional materials adoption process, procurement contract, or
other practice or instrument used for purchase of print instructional
materials, enter into a written contract with the publisher of the
print instructional materials to: (1) Require the publisher to prepare
and, on or before delivery of the print instructional materials,
provide the NIMAC with electronic files containing the content of the
print instructional materials using the NIMAS; or (2) purchase
instructional materials from the publisher that are produced in, or may
be rendered in, specialized formats. Clearly, we would expect that
these States would have adopted the NIMAS by December 3, 2006. We
decline to require a specific adoption date for all States, however,
given the lack of specificity in the Act. We also decline to include a
definition of ``adopt'' in these regulations because requirements for
adopting new rules and policies may vary from State to State. The
Department's view is that it is inherent in the adoption requirement
that, at a minimum, upon ``adoption'' of the NIMAS, a State must accept
and use electronic copies of instructional materials in the NIMAS
format for the purpose of providing instructional materials to blind or
other persons with print disabilities. Under Sec. 300.172(a), adopting
the NIMAS is a State responsibility and does not impose any legal
obligations on publishers of instructional materials.
[[Page 46617]]
Changes: We have made technical changes in Sec. 300.172(c). For
clarity, we have replaced the phrase ``not later than'' with ``as of.''
We have removed the phrase ``two years after the date of enactment of
the Individuals with Disabilities Education Improvement Act of 2004''
because it is unnecessary.
Comment: One commenter recommended requiring States to comply with
the requirements for public hearings and public comment in section
612(a)(19) of the Act before adopting policies and procedures to
implement the requirements in Sec. 300.172 related to access to
instructional materials. The commenter stated that all interested
members of the public, including parents of children with disabilities,
are entitled to participate in designing the plan for implementing
these policies and procedures.
Discussion: Section 300.165(a), consistent with section 612(a)(19)
of the Act, requires States to hold public hearings and receive public
comment before implementing any policies and procedures needed to
comply with Part B of the Act. These public hearing and public comment
requirements apply to the policies and procedures needed to implement
the requirements in Sec. 300.172.
Changes: None.
Comment: One commenter requested clarification on whether the NIMAS
is limited to print materials on the medium of paper or also includes
the iconic representation of letters and words.
Discussion: The NIMAS is the standard established by the Secretary
to be used in the preparation of electronic files of print
instructional materials so they can be more easily converted to
accessible formats, such as Braille. In addition to print materials,
the NIMAS provides standards for textbooks and related core materials
where icons replace text. Materials with icons will be available if
they are in printed textbooks and related printed core materials that
are written and published primarily for use in elementary school and
secondary school instruction and are required by an SEA or LEA for use
by children in the classroom, consistent with section 674(e)(3)(C) of
the Act.
Changes: None.
Comment: A few commenters recommended clarifying that providing
materials in accessible formats includes changes in the depth, breadth,
and complexity of materials. Some commenters stated that Sec. 300.172
should include language regarding universal design of instructional
materials.
Discussion: Section 300.172 is consistent with section 612(a)(23)
of the Act and focuses specifically on providing access to print
instructional materials using the NIMAS. The NIMAS is designed to
improve the quality and consistency of print instructional materials
converted into accessible formats for persons who are blind and persons
with print disabilities, not to alter the content (e.g., the depth,
breadth, or complexity) of the print instructional materials. While the
NIMAS is designed to make print instructional materials more readily
and easily accessible to persons who are blind and persons with print
disabilities, it is not intended to provide materials that are
universally designed. Therefore, while the Department acknowledges the
importance of universal design, it would be inappropriate to reference
universal design in this section.
The NIMAS Development Center has been charged with examining the
need for future changes in the NIMAS. This Center, funded by the
Department, is looking at a variety of issues, including the extent to
which universal design features should be incorporated into future
iterations of the NIMAS. Information about the NIMAS Development Center
can be found at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://nimas.cast.org/.
Changes: None.
Comment: One commenter recommended that books on tape be made
available in the same manner as print materials.
Discussion: The conversion of text to speech for digital talking
books is one of the accessible formats that can be generated from a
NIMAS file. The NIMAS makes it possible for such talking books to be
generated more efficiently so that children who need them will receive
them more quickly than in the past. Such audio formats will be made
available for printed textbooks and related printed core materials that
are written and published primarily for use in elementary school and
secondary school instruction and are required by an SEA or LEA for use
by children in the classroom, consistent with section 674(e)(3)(C) of
the Act. The NIMAS does not pertain to books on tape that are produced
in sound studios.
Changes: None.
Comment: Many commenters requested that the regulations specify
that providing instructional materials to children with disabilities in
a timely manner means providing these materials at the same time they
are provided to children without disabilities. One commenter
recommended defining ``in a timely manner'' as the start of the school
year or, for children who transfer schools after the start of the
school year, within 30 days of the start of the school year, regardless
of whether a State chooses to coordinate with the NIMAC.
Discussion: The Department agrees that States should make every
effort to provide children with disabilities accessible instructional
materials at the same time as other children receive their
instructional materials. The Department's position is consistent with
S. Rpt. No. 108-185, p. 19, which states, ``The committee feels
strongly that instructional materials should be provided to blind and
print disabled students at the same time their fellow students without
print disabilities are receiving the same materials.'' This position
also is consistent with H. Rpt. No. 108-77, pp. 97-98.
However, the Department recognizes that this may not be possible in
all circumstances, for example, when a child with a disability
transfers to a new school in the middle of a school year. Additionally,
there could be circumstances beyond the control of the public agency
that could prevent children with disabilities who need instructional
materials in accessible formats from receiving them at the same time as
instructional materials are provided to other children, such as if the
public agency's contractor is unable to produce the instructional
materials in an accessible format because of some unforeseen
circumstance. In situations such as these, it is understandable that
the accessible format materials may not be immediately available.
Therefore, we will add a provision to the regulations to specify that
in order to meet their obligation to provide accessible format
instructional materials in a timely way, public agencies must take all
reasonable steps to make those instructional materials available at the
same time as instructional materials are provided to other children.
Reasonable steps, for example, would include requiring publishers or
other contractors to provide instructional materials in accessible
formats by the beginning of the school year for children whom the
public agency has reason to believe will be attending its schools.
Reasonable steps also might include having a means of acquiring
instructional materials in accessible formats as quickly as possible
for children who might transfer into the public agency in the middle of
the year. Reasonable steps would not include withholding instructional
materials from other children until instructional materials in
accessible formats are available. To clarify that the obligation to
make instructional materials available in a timely manner applies even
to
[[Page 46618]]
States that coordinate with the NIMAC, we are adding a new provision to
that effect. We also are clarifying that the definitions in Sec.
300.172(e) apply to each State and LEA, whether or not the State or LEA
chooses to coordinate with the NIMAC.
Changes: We have amended paragraph (b) in Sec. 300.172 by adding a
new paragraph (b)(4) requiring the SEA to ensure that all public
agencies take all reasonable steps to provide instructional materials
in accessible formats to children with disabilities who need those
instructional materials at the same time as other children receive
instructional materials. We have reorganized paragraph (c) and added a
new paragraph (c)(2) requiring States that coordinate with the NIMAC to
provide accessible materials in a timely manner. We have also amended
paragraph (e) by adding a new paragraph (e)(2) to clarify that the
definitions in Sec. 300.172(e)(1) apply to each SEA and LEA whether or
not the SEA or LEA chooses to coordinate with the NIMAC. We have made
technical changes to Sec. 300.172(e) and renumbered Sec. 300.172(e)
to be consistent with this change.
Comment: Many commenters expressed concern that the regulations
fail to ensure timely access to instructional materials for children
with other types of disabilities besides print disabilities. One
commenter recommended clarifying that children do not have to be blind
or have print disabilities to fit into the description of children who
need accessible materials. However, another commenter stated that Sec.
300.172(b)(3), which require SEAs to be responsible for providing
accessible materials for children for whom assistance is not available
from the NIMAC, should be removed because the Act does not include
these requirements.
A few commenters requested adding a regulation to clarify that the
requirements in Sec. 300.172 do not apply if an SEA is not responsible
for purchasing textbooks. The commenters stated that if an SEA cannot
purchase textbooks, it has no legal relationship with textbook
publishers and cannot comply with the requirements in Sec. 300.172.
Discussion: Timely access to appropriate and accessible
instructional materials is an inherent component of a public agency's
obligation under the Act to ensure that FAPE is available for children
with disabilities and that children with disabilities participate in
the general curriculum as specified in their IEPs. Section
300.172(b)(3) provides that nothing relieves an SEA of its
responsibility to ensure that children with disabilities who need
instructional materials in accessible formats, but who do not fall
within the category of children who are eligible to receive materials
produced from NIMAS files obtained through the NIMAC, receive those
instructional materials in a timely manner. Therefore, we do not
believe that any further clarification is necessary. Even SEAs that are
not directly responsible for purchasing textbooks have this
responsibility. In short, we believe these regulations are necessary to
fully implement the Act.
Changes: None.
Comment: One commenter stated that all children with disabilities
should receive assistance from the NIMAC.
Discussion: We disagree with the commenter. Section 674(e) of the
Act limits the authority of the NIMAC to provide assistance to SEAs and
LEAs in acquiring instructional materials for children who are blind,
have visual disabilities, or are unable to read or use standard print
materials because of physical limitations, and children who have
reading disabilities that result from organic dysfunction, as provided
for in 36 CFR 701.6. Clearly, SEAs and LEAs that choose to use the
services of the NIMAC will be able to assist blind persons or other
persons with print disabilities who need accessible instructional
materials through this mechanism. However, SEAs and LEAs still have an
obligation to provide accessible instructional materials in a timely
manner to other children with disabilities who also may need accessible
materials even though their SEA or LEA may not receive assistance from
the NIMAC, as provided in Sec. Sec. 300.172(b)(3) and 300.210(b).
Changes: None.
Rights and Responsibilities of SEAs (Sec. 300.172(b))
Comment: Many commenters expressed concern about allowing States to
choose not to coordinate with the NIMAC. A few commenters stated that
coordination with the NIMAC should be mandatory for all States. One
commenter recommended that the Department strongly encourage States to
coordinate with the NIMAC, because it may be difficult for States to
provide the assurances required in Sec. 300.172(b)(2) if they choose
not to coordinate with the NIMAC. A few commenters recommended that
States that cannot demonstrate a past history of providing
instructional materials to children with disabilities in a timely
manner should be required to coordinate with the NIMAC.
Discussion: It would be inconsistent with section 612(a)(23)(B) of
the Act to make coordination with the NIMAC mandatory for all States or
to require certain States to coordinate with the NIMAC (e.g., States
that do not have a history of providing instructional materials to
children with disabilities in a timely manner), as suggested by the
commenters. Section 612(a)(23)(B) of the Act provides that nothing in
the Act shall be construed to require any SEA to coordinate with the
NIMAC.
Changes: None.
Comment: Several commenters requested that the regulations clearly
define the process for a State to choose not to coordinate with the
NIMAC. A few commenters requested additional details on what assurances
States must provide if they choose not to coordinate with the NIMAC.
Other commenters requested that State assurances provide the public
with information to evaluate the capacity of the State to provide
materials to children who are blind or have print disabilities. Some
commenters stated that the assurances provided by States that choose
not to coordinate with the NIMAC should be done annually and in
writing.
Several commenters requested that the regulations provide a means
for the public to obtain information about which States choose not to
coordinate with the NIMAC. A few commenters requested that the
Department publish the assurances made by SEAs that choose not to
coordinate with the NIMAC. Some commenters stated that SEAs that choose
to coordinate with the NIMAC should be required to provide information
to the Department on the LEAs in the State that elect not to coordinate
with the NIMAC.
Discussion: Section 300.172(b)(2), consistent with section
612(a)(23)(B) of the Act, requires SEAs that choose not to coordinate
with the NIMAC to provide an assurance to the Secretary that the agency
will provide instructional materials to blind persons and other persons
with print disabilities in a timely manner. As part of a State's
application for Part B funds, Sec. 300.100 and section 612(a) of the
Act require States to provide assurances to the Secretary that the
State has in effect policies and procedures to ensure that the State
meets the conditions of eligibility. (The Part B Annual State
Application for 2006, OMB No. 1820-0030, can be found at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/fund/grant/apply/osep/2006apps.html.
)
Therefore, the Department will compile a list of the States that
choose to coordinate with the NIMAC and those that do not, and will
make this list
[[Page 46619]]
available on OSEP's monitoring Web site at:
http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.
Section 612(a)(23)(B) of the Act does not mandate that States
coordinate with the NIMAC or place conditions on which States can
choose to coordinate with the NIMAC. Therefore, it is unnecessary to
require a State's assurance to include information on its capacity to
provide instructional materials to children who are blind or have print
disabilities, as commenters recommended.
We do not believe it is appropriate to regulate to require States
to provide information to the Department on the LEAs in the State that
elect not to coordinate with the NIMAC. Under Sec. 300.149 and section
612(a)(11) of the Act, States are responsible for ensuring that LEAs in
the State meet the requirements of the Act, including providing
instructional materials to blind persons or other persons with print
disabilities in a timely manner. As stated in Sec. 300.210 and section
613(a)(6)(B) of the Act, if an LEA chooses not to coordinate with the
NIMAC, the LEA must provide an assurance to the SEA that the LEA will
provide instructional materials to blind persons or other persons with
print disabilities in a timely manner.
Changes: None.
Comment: Some commenters proposed that the regulations require
States that choose not to coordinate with the NIMAC to annually report
to the public on when children with disabilities receive their
materials, how print materials are provided in a timely manner, and the
steps the State has taken to ensure that materials will be provided at
the same time as materials are provided to children without
disabilities. One commenter stated that, if a State chooses not to
coordinate with the NIMAC, the State should be required to submit data
to the Department on the number of children with print disabilities
served by the State and when those children received the accessible
version of print instructional materials compared with when other
children received their materials. Other commenters recommended that
States choosing not to coordinate with the NIMAC should be required to
develop and publish their policies and procedures that govern how they
maintain and distribute NIMAS files.
Discussion: It would be unfair to impose additional data collection
and reporting requirements, such as those requested by the commenters,
only on those States that choose not to coordinate with the NIMAC. All
States, regardless of whether they choose to coordinate with the NIMAC,
must ensure that children with disabilities who need instructional
materials in accessible formats receive instructional materials in a
timely manner, consistent with Sec. 300.172(b)(3).
Furthermore, even States that choose to coordinate with the NIMAC
will need to take steps to ensure that the instructional materials for
children eligible to receive print instructional materials derived from
NIMAS files are received in a timely manner. As provided in section
674(e)(3)(A) of the Act, the NIMAC is a distribution center for NIMAS
files obtained from publishers, SEAs, and LEAs. Section 612(a)(23) of
the Act requires SEAs that choose to coordinate with the NIMAC to enter
into written contracts with publishers to require the publishers to
provide electronic files using the NIMAS to the NIMAC on, or before,
delivery of the print instructional materials to the SEA.
The NIMAC is not responsible for converting NIMAS files to the
accessible formats needed by the children eligible to receive print
instructional materials derived from NIMAS files. All States will need
to arrange to have the NIMAS files converted to student-ready versions
of instructional materials in the accessible formats needed by these
children.
Changes: None.
Comment: One commenter requested that the Department provide
information and training to States and LEAs on the NIMAC so that they
can make an informed choice regarding whether to coordinate with the
NIMAC. Another commenter recommended that the Department provide
written guidance for States and LEAs regarding the NIMAS and the NIMAC.
Discussion: The Department recognizes the need to provide
information to SEAs and LEAs regarding the NIMAS and the NIMAC and will
provide technical assistance through the NIMAS Technical Assistance
Center after the Department has approved the NIMAC procedures.
Changes: None.
Preparation and Delivery of Files (Sec. 300.172(c))
Comment: One commenter recommended that the regulations require
instructional materials provided to children with disabilities to be
complete and accurate. Another commenter requested requiring publishers
to provide copies of the original books to the NIMAC along with the
electronic files, because a copy of the original book is necessary for
alignment of page numbers and descriptions of pictures.
Discussion: We understand and appreciate the importance of having a
copy of the original material to ensure accuracy of the files. However,
the NIMAC is not responsible for ensuring the accuracy of materials,
aligning page numbers, or describing pictures. Rather, the NIMAC is a
distribution center for NIMAS files obtained from publishers, SEAs, and
LEAs. Consistent with section 674(e)(3)(A) of the Act, the duties of
the NIMAC are to receive and maintain a catalog of print instructional
materials prepared in the NIMAS format and made available to the NIMAC
by the textbook publishing industry, SEAs, and LEAs. Accessible,
student-ready versions of instructional materials are created from
NIMAS source files by national third-party conversion organizations;
regional or State conversion sources; desktop applications created by
software developers; or curriculum publishers that produce accessible
alternate format versions for direct sale to SEAs and LEAs. The Act
does not authorize the Department to impose obligations on such
entities to provide accurate materials. States and LEAs that contract
with such entities, however, may wish to require the accuracy of such
materials, including the alignment of page numbers and descriptions of
pictures, as part of their agreements.
Changes: None.
Comment: One commenter suggested that the regulations permit an SEA
to receive assistance from the NIMAC, even if the SEA is not formally
coordinating with the NIMAC.
Discussion: The Act does not require the NIMAC to provide
assistance to SEAs if the SEA has chosen not to coordinate with the
NIMAC. However, there is nothing in the Act that would prevent the
NIMAC from doing so. As stated in section 674(e)(2)(B) of the Act, the
NIMAC must provide access to print instructional materials, including
textbooks, in accessible media, free of charge, to blind or other
persons with print disabilities in elementary and secondary schools, in
accordance with such terms and procedures as the NIMAC may prescribe.
Providing this access could include assisting an SEA, even if the SEA
has chosen not to coordinate with the NIMAC.
Changes: None.
Comment: One commenter recommended that the regulations include an
accountability mechanism so that parents and schools know whether the
State or LEA is responsible for the timely delivery of instructional
materials.
[[Page 46620]]
Discussion: Whether instructional materials are purchased by the
State or LEA is a State matter. The Act does not authorize the
Department to impose obligations on States or LEAs with respect to the
process for timely delivery of instructional materials.
Changes: None.
Comment: One commenter emphasized the need to track the progress
and monitor the advancement of accessible materials on a national and
regional level. Another commenter stated that there is a need to
establish SEA and LEA baseline data regarding the timeliness, quality,
and quantity of alternate formats in schools. One commenter stated that
States should be required to publicize information regarding whether
the State is meeting its responsibilities to provide accessible
materials to persons who are blind or other persons with print
disabilities in a timely manner.
Discussion: We believe that it would be overly burdensome to
require States to collect and report data on the timeliness, quality,
and quantity of alternate formats provided to children with
disabilities in order to track the availability of accessible materials
for children with disabilities on a regional or national level. Under
the State complaint procedures, States are responsible for resolving
complaints alleging violations of requirements under the Act, including
this one.
Changes: None.
Comment: One commenter requested information on the scope of the
NIMAC's responsibilities.
Discussion: The duties of the NIMAC are specified in section
674(e)(2) of the Act and include: (a) receiving and maintaining a
catalog of print instructional materials prepared in the NIMAS format;
(b) providing access to print instructional materials in accessible
media, free of charge to blind or other persons with print disabilities
in elementary schools and secondary schools; and (c) developing,
adopting, and publishing procedures to protect against copyright
infringement, with respect to print instructional materials provided
under sections 612(a)(23) and 613(a)(6) of the Act.
Section 674(c) of the Act provides that NIMAC's duties apply to
print instructional materials published after July 19, 2006, the date
on which the final rule establishing the NIMAS is published in the
Federal Register (71 FR 41084). The Department interprets ``publish''
to have the plain meaning of the word, which is to issue for sale or
distribution to the public. The NIMAC's duties, therefore, apply to
print instructional materials made available to the public for sale
after the NIMAS is published in the Federal Register. However, this
does not relieve SEAs and LEAs of their responsibility to provide
accessible instructional materials in a timely manner, regardless of
when the instructional materials were ``published.''
Changes: None.
Comment: A few commenters expressed concern that the regulations do
not specify the structure and operation of the NIMAC. One commenter
requested that the Department provide more information about the
operation of the NIMAC. Another commenter recommended that the NIMAC's
management board include representatives of authorized entities. One
commenter requested information on the legal protections that the
Department will provide to the NIMAC. Another commenter requested
specific information on the process and timing of the funding of the
NIMAC. One commenter recommended a timeline with a series of activities
(e.g., establishment of a cooperative agreement, cost projections) to
ensure that the NIMAC is operational. Another commenter recommended
that the Department develop a process to ensure that the files included
in the NIMAC are NIMAS compliant, complete, and of the highest quality.
One commenter expressed concern about how NIMAS files will be bundled
and delivered to the NIMAC.
Discussion: We do not believe that regulations on the structure,
operation, or budget of the NIMAC are necessary. Section 674(e) of the
Act establishes the NIMAC through the American Printing House for the
Blind (APH) and allows the NIMAC to prescribe terms and procedures to
perform its duties under the Act. The Department's Office of Special
Education Programs (OSEP) will oversee the administration of the NIMAC
through a cooperative agreement with the APH and will work with the
NIMAC to establish its structure, operating procedures, and budget. The
NIMAC procedures will be available on the NIMAC Web site at:
http://www.nimac.us
.
Changes: None.
Comment: One commenter stated that the duties of the NIMAC to
receive and maintain electronic files of instructional materials
provided by publishers should not be misconstrued as imposing a duty on
the NIMAC itself to use the NIMAS files to reproduce the instructional
materials in accessible formats for children with print disabilities.
Discussion: The Act clarifies that the NIMAC is not responsible for
producing instructional materials in accessible formats. As stated in
section 674(e)(2) of the Act, the NIMAC receives and maintains a
catalog of print instructional materials prepared in the NIMAS, and
made available to the NIMAC by the textbook publishing industry, SEAs,
and LEAs.
Changes: None.
Comment: One commenter expressed concern about clear guidance
regarding electronic rights. Another commenter recommended that the
regulations require the NIMAC to develop a user agreement that any
entity seeking access to a NIMAS file must sign. The commenters stated
that the agreement should detail the entities that are eligible under
Federal copyright law and the Act to access the NIMAS files, the
alternate formats that may be produced, and any other restrictions on
the dissemination and use of NIMAS files.
One commenter stated that the regulations should require that the
authorized entities have full, complete, and immediate access to
deposited files and clarify that the authorized entities are
responsible for reproducing the instructional materials in an
accessible format and therefore, the files housed by the NIMAC should
be free of charge. Another commenter stated that the Department should
ensure that NIMAS books are available to all authorized entities and
the appropriate State organizations within five days after the books
are deposited in the NIMAC.
Discussion: We do not believe it is appropriate or necessary to
regulate on the authorized entities eligible to have access to the
NIMAS files. Under section 674(e)(2)(C) of the Act, the NIMAC is
required to develop, adopt, and publish procedures to protect against
copyright infringement, with respect to the print instructional
materials produced using the NIMAS and provided by SEAs and LEAs to
blind persons or other persons with print disabilities. Such procedures
will address, for example, information regarding the authorized
entities that are eligible to have access to NIMAS files,
responsibilities of such authorized entities, and how and when access
will be provided. The NIMAC procedures will be available on the NIMAC
Web site at: http://www.nimac.us.
Changes: None.
Comment: One commenter suggested several changes in the process to
make Braille copies of instructional materials including constructing
directions for choosing answers in universal terms, such as ``write the
correct response,'' rather than ``circle'' or ``underline;''
describing, in writing, visuals that cannot be easily interpreted;
using hard
[[Page 46621]]
paper for Braille and raised drawings, rather than thermoform; using
hard-bound bindings for text, rather than plastic spiral binders; using
audio formats as supplemental materials; and using simple graphics with
easy access to map keys on the same page.
Discussion: Procedures for Braille transcribers and for conversion
entities are the responsibility of SEAs and LEAs and, as such, are
beyond the scope of these regulations.
Changes: None.
Comment: One commenter recommended that software companies
routinely create desktop publishing programs that contain text to
speech capabilities.
Discussion: It is beyond the Department's authority to impose
requirements on software companies.
Changes: None.
Comment: One commenter recommended that a NIMAS style guide be
developed that is textbook specific.
Discussion: The NIMAS Technical Assistance Center will develop a
best practices Web page with exemplars and a style guide. This
technical assistance resource will be available at: http://nimas.cast.org.
Changes: None.
Assistive Technology (Sec. 300.172(d))
Comment: A few commenters requested that the regulations clarify
that the ``assistive technology programs,'' referred to in Sec.
300.172(d), are the programs established in each State pursuant to the
Assistive Technology Act of 1998, as amended.
Discussion: Section 300.172(d) and section 612(a)(23)(D) of the Act
provide that in carrying out the requirements in Sec. 300.172, the
SEA, to the maximum extent possible, must work collaboratively with the
State agency responsible for assistive technology programs. Section
612(a)(23)(D) of the Act does not refer to any particular assistive
technology program. Therefore, we interpret broadly the phrase ``State
agency responsible for assistive technology programs'' to mean the
agency determined by the State to be responsible for assistive
technology programs, which may include programs established under
section 4 of the Assistive Technology Act of 1998, as amended.
Changes: None.
Definitions (Sec. 300.172(e))
Comment: Several commenters requested that Sec. 300.172(e) include
the full definition of terms, rather than the citations to the
definitions in the laws. A number of commenters requested that the
regulations include a definition of ``persons with print
disabilities.''
Discussion: We have published the NIMAS as Appendix C to Part 300--
National Instructional Materials Accessibility Standard of these
regulations, which will include the definition of NIMAS from section
674(e)(3)(B) of the Act.
The definition of the NIMAC in new Sec. 300.172(e)(1)(ii)
(proposed Sec. 300.172(e)(2)) and section 612(a)(23)(E)(i) of the Act
refers to the center established pursuant to section 674(e) of the Act.
Paragraph (e)(1) in section 674 of the Act establishes the center at
the APH and paragraph (e)(2) outlines the duties of the NIMAC. We do
not believe it is necessary to include this information in the
regulations in order to implement the requirements of the Act, but will
include it here for the convenience of the readers.
National Instructional Materials Access Center or NIMAC means the
center established pursuant to section 674(e) of the Act. Section
674(e) of the Act provides, in part, that--
(1) In general. The Secretary shall establish and support, through
the American Printing House for the Blind, a center to be known as the
``National Instructional Materials Access Center'' not later than one
year after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004.
(2) Duties. The duties of the NIMAC are the following:
(A) To receive and maintain a catalog of print instructional
materials prepared in the NIMAS, as established by the Secretary, made
available to such center by the textbook publishing industry, State
educational agencies, and local educational agencies.
(B) To provide access to print instructional materials, including
textbooks, in accessible media, free of charge, to blind or other
persons with print disabilities in elementary schools and secondary
schools, in accordance with such terms and procedures as the NIMAC may
prescribe.
(C) To develop, adopt and publish procedures to protect against
copyright infringement, with respect to the print instructional
materials provided under sections 612(a)(23) and 613(a)(6).
The definitions of blind persons or other persons with print
disabilities and specialized format both refer to statutes other than
the Act. For the reasons set forth earlier in this notice, we are
referencing the definitions of terms in Sec. 300.172(e), rather than
adding them to these regulations. However, we will include them here
for the convenience of the readers.
The Library of Congress regulations (36 CFR 701.6(b)(1)) related to
the Act to Provide Books for the Adult Blind (approved March 3, 1931, 2
U.S.C. 135a) provide that blind persons or other persons with print
disabilities include:
(i) Blind persons whose visual acuity, as determined by competent
authority, is 20/200 or less in the better eye with correcting glasses,
or whose widest diameter if visual field subtends an angular distance
no greater than 20 degrees.
(ii) Persons whose visual disability, with correction and
regardless of optical measurement, is certified by competent authority
as preventing the reading of standard printed material.
(iii) Persons certified by competent authority as unable to read or
unable to use standard printed material as a result of physical
limitations.
(iv) Persons certified by competent authority as having a reading
disability resulting from organic dysfunction and of sufficient
severity to prevent their reading printed material in a normal manner.
Competent authority is defined in 36 CFR 701.6(b)(2) as follows:
(i) In cases of blindness, visual disability, or physical
limitations ``competent authority'' is defined to include doctors of
medicine, doctors of osteopathy, ophthalmologists, optometrists,
registered nurses, therapists, professional staff of hospitals,
institutions, and public or welfare agencies (e.g., social workers,
case workers, counselors, rehabilitation teachers, and
superintendents).
(ii) In the case of a reading disability from organic dysfunction,
competent authority is defined as doctors of medicine who may consult
with colleagues in associated disciplines.
Specialized formats has the meaning given the term in section
121(d)(4) of title 17, United States Code:
(A) Braille, audio, or digital text which is exclusively for use by
blind or other persons with disabilities.
(B) With respect to print instructional materials, includes large
print formats when such materials are distributed exclusively for use
by blind or other persons with disabilities.
Changes: As noted earlier, we have amended paragraph (e) of Sec.
300.172 by adding a new paragraph (e)(2) to clarify that the
definitions in Sec. 300.172(e)(1) apply to each SEA and LEA whether or
not the SEA or LEA chooses to coordinate with the NIMAC. We have made
technical changes to Sec. 300.172(e) and renumbered Sec. 300.172(e)
to be consistent with this change.
[[Page 46622]]
Prohibition on Mandatory Medication (Sec. 300.174)
Comment: A few commenters expressed concern that the regulations do
not provide sufficient guidance on what school personnel can
communicate to parents regarding medication. The commenters stated that
in the absence of additional guidance, the regulations have the
unintended effect of preventing school personnel from speaking openly
with parents regarding classroom behavior, options for addressing
behavior problems, and the impact of a child's medication on classroom
behavior. Further, the commenters requested that the regulations do
more to encourage school personnel to recommend evaluations for
children with behavior problems and communicate openly with parents
about the effectiveness of treatment, and protect school personnel.
Other commenters recommended requiring school personnel to inform
parents if they suspect that a child's behavior may be related to a
disability.
Discussion: We believe that Sec. 300.174 provides sufficient
guidance on what school personnel can and cannot communicate to parents
regarding a child's medication. Paragraph (a) clarifies that school
personnel cannot require parents to obtain a prescription for
medication for a child as a condition of attending school, receiving an
evaluation to determine if a child is eligible for special education
services, or receiving special education and related services under the
Act. Paragraph (b) clearly permits classroom personnel to speak with
parents or guardians regarding a child's academic and functional
performance, behavior in the classroom or school, or the need for an
evaluation to determine the need for special education or related
services.
We do not believe that further regulations are needed to encourage
school personnel to recommend evaluations for children with behavior
problems or to require school personnel to inform parents if they
suspect a child's behavior may be related to a disability. The child
find requirements in Sec. 300.111 clarify that States must have in
effect policies and procedures to ensure that all children with
disabilities residing in a State and who are in need of special
education and related services, are identified, located, and evaluated.
Changes: None.
States' Sovereign Immunity (New Sec. 300.177)
Comment: None.
Discussion: In developing the proposed regulations, we incorporated
those provisions of subpart A that apply to States. We inadvertently
omitted the provisions in section 604 of the Act, regarding States'
sovereign immunity. We have added these to the regulations in new Sec.
300.177. In paragraph (a), we have clarified that the statutory
language means that a State must waive immunity in order to receive
Part B funds. This is the longstanding interpretation of the Department
and is consistent with Federal Circuit Courts' decisions interpreting
this statutory language. (See, e.g., Pace v. Bogalusa City Sch. Bd.,
403 F.3d 272 (5th Cir. 2005); M.A. ex rel. E.S. v. State-Operated Sch.
Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch. Dist. v. Mauney,
183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131 F.3d 610 (7th Cir.
1997).)
Changes: We have added the provisions in section 604 of the Act,
regarding States' sovereign immunity, to new Sec. 300.177.
Department Procedures (Sec. Sec. 300.178 Through 300.186)
Comment: One commenter stated that the requirements in Sec. Sec.
300.179 through 300.183, regarding the notice and hearing procedures
before the Secretary determines a State is not eligible to receive a
grant under Part B of the Act, are unnecessary and go beyond what is
required in section 612(d) of the Act. The commenter recommended
removing Sec. Sec. 300.179 through 300.183 and including additional
language in Sec. 300.178 clarifying that the Secretary has the
authority to develop specific administrative procedures to determine if
States meet statutory requirements for eligibility under Part B of the
Act and that such procedures must include notification of eligibility
or non-eligibility, an opportunity for a hearing, and an opportunity
for appeal of the hearing decision.
Discussion: The Department does not agree with the commenter that
the notification and hearing procedures included in Sec. Sec. 300.179
through 300.183 are unnecessary and go beyond what is required in
section 612(d) of the Act. Section 612(d)(2) of the Act states that the
Secretary shall not make a final determination that a State is not
eligible to receive a grant under this part until after providing the
State with reasonable notice and an opportunity for a hearing. When the
Secretary proposes to deny a State's eligibility to receive a grant
under Part B of the Act, withhold funds, or take other enforcement
action, it is important to all parties that the process through which
those issues will be decided is clearly described, so that time, money,
and effort are not spent resolving procedural questions instead of the
underlying issues. For these reasons, we believe it is important to
retain Sec. Sec. 300.179 through 300.183 in the regulations.
Changes: None.
Judicial Review (Sec. 300.184)
Comment: One commenter requested that we clarify in the regulations
the status of a State's operation of a program or eligibility to
receive a grant under Part B of the Act while a final judicial decision
is pending with respect to the State's eligibility under section 612 of
the Act.
Discussion: Under section 612(a) of the Act, States must meet
certain conditions in order to be eligible for a grant under the Part B
program. Under section 612(d) of the Act, if the Secretary, after
notice and an opportunity for a hearing, makes a final determination
that a State is not eligible for a grant, the Secretary may not award
funds to the State. The procedures in Sec. Sec. 300.179 through
300.183 detail the process through which the Secretary notifies a State
of a proposed ineligibility determination, the hearing available to the
State to dispute this proposal, and the process through which the
Secretary makes a final determination. The Secretary's final
determination may be appealed through the judicial review procedure
described in section 616(e)(8) of the Act and Sec. 300.184. We decline
to address this issue more specifically in the regulations, however, as
we think the regulations already adequately convey the idea that only
States that the Secretary determines to be eligible can receive a
grant.
Changes: None.
By-Pass for Children in Private Schools (Sec. Sec. 300.190 through
300.198)
Comment: One commenter stated that Sec. Sec. 300.190 through
300.198 are unnecessary because the Act gives sufficient authority for
the Secretary to implement a by-pass for children with disabilities
enrolled in private elementary schools and secondary schools.
Discussion: Section 300.190 retains the authority for a by-pass in
current Sec. 300.480 and includes additional authority for a by-pass,
consistent with section 612(f)(1) of the Act, in cases where the
Secretary determines that an SEA, LEA, or public agency has
substantially failed, or is unwilling, to provide for equitable
participation of parentally-placed private school children with
disabilities. When the Secretary authorizes a by-pass it is important
that all parties understand the
[[Page 46623]]
process by which the Secretary determines the funds that will be
deducted from the State's allocation under Part B of the Act to provide
services, as well as the actions that are required before the Secretary
takes any final action to implement a by-pass. When such processes and
procedures are clearly described, time, money, and effort are not spent
resolving procedural questions. The requirements in Sec. Sec. 300.190
through 300.198 provide this information and we believe are necessary
to clarify and ensure effective implementation of the by-pass
provisions in the Act. We are making one change to Sec. 300.191(d) to
clarify that the Secretary deducts amounts the Secretary determines
necessary to implement a by-pass from the State's allocations under
sections 611 and 619 of the Act.
Changes: In Sec. 300.191(d) we have substituted a reference to
sections 611 and 619 of the Act for a reference to Part B of the Act.
Show Cause Hearing (Sec. 300.194)
Comment: One commenter opposed allowing a lawyer for the SEA or LEA
to present oral and written evidence and arguments at a show cause
hearing because parents are often intimidated by having to face a
lawyer.
Discussion: Section 300.194(a)(3) provides an opportunity for an
SEA, LEA, or other public agency, and representatives of private
elementary schools and secondary schools to be represented by legal
counsel and to submit oral or written evidence or arguments at a
hearing to show cause why a by-pass should not be implemented. Parents
are not parties to this hearing and generally would not appear before
the show cause hearing officer, and would, therefore, not be
intimidated by a participating lawyer. We believe that it is only fair
that the party to the hearing (SEA, LEA, or other public agency, and
representatives of private schools) be provided the option to be
represented by legal counsel because legal counsel will generally
represent the Department, as a party to the hearing.
Changes: None.
State Administration (Sec. 300.199)
Comment: One commenter indicated that Sec. 300.199 is improperly
placed in the regulations under the general heading ``By-pass for
Children in Private Schools.''
Discussion: We agree with the commenter that Sec. 300.199 does not
belong under the general heading ``By-Pass for Children in Private
Schools.''
Changes: A new undesignated center heading entitled ``State
Administration'' will be added immediately preceding Sec. 300.199 to
separate that section from the regulations related to implementation of
the by-pass provisions of the Act.
Comment: One commenter recommended including in Sec. 300.199 a
requirement that States may not eliminate from their rules,
regulations, and policies any provisions required by Part B of the Act
and its implementing regulations.
Discussion: Section 300.199 incorporates the requirement in section
608 of the Act that any rulemaking related to the Act conducted by the
State conform to the purposes of the Act. Consistent with section 608
of the Act, Sec. 300.199 makes clear that each State that receives
funds under Part B of the Act must ensure that any State rules,
regulations, and policies relating to 34 CFR part 300 conform to the
provisions of 34 CFR part 300. We do not believe it is necessary to add
a provision in Sec. 300.199 prohibiting States from eliminating from
their rules, regulations, and policies any provisions required by Part
B of the Act and its implementing regulations, as requested by the
commenter. If a State were to do so, the State's rules, regulations,
and policies would not conform to the provisions in 34 CFR part 300.
Under this provision, a State, and not the Secretary, determines
whether a particular rule, regulation, or policy conforms to the
purposes of the Act.
Changes: None.
Comment: Some commenters expressed concern that the mandate to
minimize State rules and regulations might discourage States from
developing beneficial programs, and, therefore, should not pertain to
policies that promote best practices, increased parental involvement,
educating children in the least restrictive environment, and improving
access to the general curriculum. One commenter recommended including a
statement in the regulations that a State would not be penalized for
exceeding the minimum requirements of the Act. A few commenters stated
that the services provided by the Act were intended to be a ``floor,''
rather than a ``ceiling'' and recommended a pilot program to encourage
States to adopt rules that best serve the needs of children with
disabilities.
Discussion: We do not agree that the regulations discourage States
from developing beneficial programs or establishing rules that best
serve the needs of children with disabilities. In fact, Sec.
300.199(b), consistent with section 608(b) of the Act, requires State
rules, regulations, and policies under the Act to support and
facilitate LEA and school-level system improvement designed to enable
children with disabilities to meet challenging State student academic
achievement standards.
Section 300.199(a), consistent with section 608(a) of the Act, is
intended to minimize the number of rules, regulations, and policies to
which LEAs and schools are subject under the Act, and to identify in
writing any rule, regulation, or policy that is State-imposed and not
required under the Act and its implementing regulations. The
Department's position is consistent with S. Rpt. No. 108-185, p. 10,
which states ``Through section 608(a), the committee is in no way
attempting to reduce State input or State practice in this area, but
intends to make clear what is a Federal obligation and what is a State
or local educational agency requirement for the Act.'' We believe it is
important for parents, teachers, school administrators, State
lawmakers, and others to understand what is required under the Act,
and, therefore, do not believe that Sec. 300.199 should be changed.
Changes: None.
Subpart C--Local Educational Agency Eligibility
Consistency With State Policies (Sec. 300.201)
Comment: Some commenters recommended requiring LEAs to seek input
from parents of children with disabilities in the development of LEA
policies, procedures, and programs.
Discussion: Section 300.201, consistent with section 613(a)(1) of
the Act, requires each LEA to have in effect policies, procedures, and
programs that are consistent with State policies and procedures. It is
up to each State and its LEAs to determine the manner in which LEAs
develop their policies, procedures, and programs, consistent with State
law and procedures. The Act does not authorize the Department to impose
additional obligations on States or LEAs with respect to the
development of LEA policies, procedures, and programs.
Changes: None.
Maintenance of effort (Sec. Sec. 300.202 through 300.205)
Comment: A few commenters stated that the maintenance of effort
requirements are complicated and unnecessary and should be eliminated
or simplified.
Discussion: Sections 300.202 through 300.205, regarding maintenance
of effort and the LEA's use of funds received
[[Page 46624]]
under Part B of the Act, reflect the specific statutory requirements in
section 613(a)(2) of the Act, as well as necessary information
regarding the implementation of these requirements. Much of the
additional information in Sec. Sec. 300.202 through 300.205 was
included in various sections throughout the current regulations. We
continue to believe that this information is necessary for the proper
implementation of the Act. Section 300.204(e), which has been newly
added to the regulations, includes the assumption of costs by the high
cost fund as an additional condition under which an LEA may reduce its
level of expenditures. We believe this provision is necessary because
LEAs should not be required to maintain a level of fiscal effort based
on costs that are assumed by the SEA's high cost fund.
In short, we have tried to present the regulations relating to LEA
maintenance of effort in a clear manner, while being consistent with
the language of the Act (which we do not have the authority to change)
and including only as much additional information as is necessary to
ensure proper implementation of the Act.
Changes: None.
Comment: One commenter stated that LEAs should be permitted to use
a reasonable amount of their Part B funds to meet the Act's
requirements relating to student assessment, outcomes, complaints,
compliance monitoring, mediation, and due process hearings.
Discussion: With one exception, nothing in the Act or these
regulations would prevent an LEA from using its Part B allotment for
the activities noted by the commenter, so long as the expenditures meet
the other applicable requirements under the Act and regulations.
LEAs may not use their Part B funds to support the mediation
process described in Sec. 300.506. Consistent with section
615(e)(2)(D) of the Act, Sec. 300.506(b)(4) requires the State (not
the LEA) to bear the cost of that mediation process. Although LEAs may
not use their Part B funds to support the mediation process required
under Sec. 300.506(b)(4), they may use their Part B funds to support
alternative mediation processes that they offer. Some LEAs (and States)
offer alternative mediation processes, in addition to the mediation
process required under section 615 of the Act. These alternative
mediation processes generally were established prior to the Federal
mandate for mediation and some LEAs (and States) continue to offer
parents the option of using these alternative mediation processes to
resolve disputes. Therefore, if an LEA has an alternative mediation
process, it may use its Part B funds for this process, so long as
parents are provided access to the required mediation process under
section 615 of the Act and are not required to use an alternative
mediation process in order to engage in the mediation process provided
under section 615 of the Act.
Changes: None.
Comment: Several commenters requested clarifying that ``per
capita'' in Sec. 300.203(b) means the amount per child with a
disability in an LEA.
Discussion: We do not believe it is necessary to include a
definition of ``per capita'' in Sec. 300.203(b) because we believe
that, in the context of the regulations, it is clear that we are using
this term to refer to the amount per child with a disability served by
the LEA.
Changes: None.
Exception to Maintenance of Effort (Sec. 300.204)
Comment: One commenter recommended expanding the exceptions to the
maintenance of effort requirements in Sec. 300.204(a) to include
negotiated reductions in staff salaries or benefits so that LEAs are
not penalized for being proactive in reducing costs. Another commenter
recommended revising Sec. 300.204 to allow LEAs to apply for a waiver
of the maintenance of effort requirements in cases of fiscal
emergencies.
Discussion: Section 300.204(a) through (d) reflects the language in
section 613(a)(2)(B) of the Act and clarifies the conditions under
which LEAs may reduce the level of expenditures below the level of
expenditures for the preceding year. Nothing in the Act permits an
exception for negotiated reductions in staff salaries or benefits or
financial emergencies. Accordingly, to expand the exceptions to the
maintenance of effort requirements, as recommended by the commenters,
would be beyond the authority of the Department.
Changes: None.
Comment: Some commenters requested clarification as to whether the
exceptions to the maintenance of effort requirements apply to an LEA
that uses funds from its SEA's high cost fund under Sec. 300.704(c)
during the preceding year.
Discussion: We do not believe further clarification is necessary
because Sec. 300.204(e) clearly states that the assumption of costs by
a State-operated high cost fund under Sec. 300.704(c) would be a
permissible reason for reducing local maintenance of effort. This
provision was included in the proposed regulations in recognition that
the new statutory authority in section 611(e)(3) of the Act that
permits States to establish a fund to pay for some high costs
associated with certain children with disabilities could logically and
appropriately result in lower expenditures for some LEAs.
Changes: None.
Adjustments to Local Fiscal Efforts in Certain Fiscal Years (Sec.
300.205)
Comment: A few commenters stated that the link between early
intervening services and reductions in maintenance of effort in Sec.
300.205(d) is not in the Act. Some commenters expressed concern that
this requirement forces an LEA to choose between providing early
intervening services and directing local funds toward nondisabled
children. One commenter stated that linking the use of funds for early
intervening services to reduction in maintenance of effort in Sec.
300.205 is not logical and was not the intent of Congress.
Discussion: The link between reductions in local maintenance of
effort (reflected in Sec. 300.205(d)) and the amount of Part B funds
that LEAs may use to provide early intervening services (reflected in
Sec. 300.226) is established in the Act. Section 300.205(d) tracks the
statutory language in section 613(a)(2)(C)(iv) of the Act and Sec.
300.226(a) tracks the statutory language in section 613(f)(1) of the
Act. Section 300.205(d) states that the amount of funds expended by an
LEA for early intervening services under Sec. 300.226 counts toward
the maximum amount of expenditures that an LEA may reduce in its local
maintenance of effort. Section 300.226(a) clearly states that the
amount of Part B funds an LEA may use to provide early intervening
services may not exceed 15 percent of the funds the LEA receives under
Part B of the Act less any amount reduced by the LEA under Sec.
300.205.
As noted in the NPRM, the Department believes it is important to
caution LEAs that seek to reduce their local maintenance of effort in
accordance with Sec. 300.205(d) and use some of their Part B funds for
early intervening services under Sec. 300.226 because the local
maintenance of effort reduction provision and the authority to use Part
B funds for early intervening services are interconnected. The decision
that an LEA makes about the amount of funds that it uses for one
purpose affects the amount that it may use for the other. Appendix D to
Part 300--Maintenance of Effort and Early Intervening Services includes
examples that illustrate how Sec. Sec. 300.205(d) and 300.226(a)
affect one another.
[[Page 46625]]
Changes: We have added a reference to Appendix D in Sec.
300.226(a).
Schoolwide Programs Under Title I of the ESEA (Sec. 300.206)
Comment: A few commenters recommended specifying in Sec.
300.206(b) that LEAs can use only funds provided under section 611 of
the Act (and not section 619 of the Act) to carry out a schoolwide
program under section 1114 of the ESEA. The commenters stated that this
change is necessary so that the per capita amount of Federal Part B
funds used to carry out a schoolwide program is not artificially
inflated by including preschool grant funds that are used to serve
children ages three through five who are not placed in a title I
school.
Discussion: Section 613(a)(2)(D) of the Act specifically provides
that an LEA may use any funds it receives under Part B of the Act to
carry out schoolwide programs under title I of the ESEA. Part B funds
include any funds an LEA receives under sections 611 and 619 of the
Act.
Changes: None.
Personnel Development (Sec. 300.207)
Comment: A few commenters suggested requiring LEAs to train their
personnel through research-based practices in order to ensure that
personnel are appropriately and adequately prepared to implement Part B
of the Act.
Discussion: We believe the regulations already address the
commenters' concern and reflect the Department's position that high-
quality professional development, including the use of scientifically
based instructional practices, is important to ensure that personnel
have the skills and knowledge necessary to improve the academic
achievement and functional performance of children with disabilities.
Section 300.207, consistent with section 613(a)(3) of the Act, requires
each LEA to ensure that all personnel necessary to carry out Part B of
the Act are appropriately prepared, subject to the requirements in
Sec. 300.156 and section 2122 of the ESEA.
Section 300.156(a), consistent with section 612(a)(14) of the Act,
clearly states that each State must establish and maintain
qualifications to ensure that personnel are appropriately and
adequately prepared and trained, and have the content knowledge and
skills to serve children with disabilities. Further, section
2122(b)(1)(B) of the ESEA requires an LEA's application to the State
for title II funds (Preparing, training, and recruiting high quality
teachers and principals) to address how the LEA's activities will be
based on a review of scientifically based research.
Changes: None.
Purchase of Instructional Materials (Sec. 300.210)
Comment: One commenter recommended requiring LEAs to hold public
hearings that meet the requirements in section 612(a)(19) of the Act
before adopting its policies and procedures to purchase instructional
materials. The commenter stated that all interested members of the
public, including parents of children with disabilities, are entitled
to participate in designing the plan to meet the requirements in Sec.
300.210.
Discussion: The Act does not require LEAs to hold public hearings
before implementing new policies and procedures. This is a matter for
each State to determine, based on its rules governing public hearings
and public comment. Therefore, we do not believe it is appropriate for
these regulations to require LEAs to hold public hearings and receive
public comment on the LEA's purchase of instructional materials, as
requested by the commenter.
Changes: None.
Comment: One commenter stated that the requirements in Sec.
300.210(b)(3) are unnecessary and should be removed because the Act
does not require LEAs to provide accessible materials for children with
disabilities for whom assistance is not available from the NIMAC.
Discussion: We believe that Sec. 300.210(b)(3) is necessary
because timely access to appropriate and accessible instructional
materials is an inherent component of an LEA's obligation under the Act
to ensure that FAPE is available for all children with disabilities and
that children with disabilities participate in the general curriculum
as specified in their IEPs. Because the NIMAC is not required to serve
all children with disabilities who need accessible materials, we
believe it is important that the regulations make clear that LEAs are
still responsible for ensuring that children with disabilities who need
instructional materials in accessible formats, but who do not fall
within the definition of children who are eligible to receive materials
produced from NIMAS files obtained through the NIMAC, receive them in a
timely manner. We, therefore, decline to delete Sec. 300.210(b)(3).
Changes: None.
Comment: A significant number of commenters expressed concern about
allowing LEAs to choose not to coordinate with the NIMAC. A few
commenters stated that coordination with the NIMAC should be mandatory
for all LEAs. Other commenters recommended that LEAs that cannot
demonstrate a history of providing instructional materials to children
with disabilities in a timely manner should be required to coordinate
with the NIMAC.
Discussion: It would be inconsistent with section 613(a)(6)(B) of
the Act to make coordination with the NIMAC mandatory for all LEAs or
to require certain LEAs to coordinate with the NIMAC (e.g., LEAs that
do not have a history of providing instructional materials to children
with disabilities in a timely manner). Section 613(a)(6)(B) of the Act
provides that nothing in the Act shall be construed to require any LEA
to coordinate with the NIMAC.
Changes: None.
Comment: Several commenters requested that the regulations clearly
define the process LEAs must go through if they choose not to
coordinate with the NIMAC. A few commenters requested additional
details on what assurances LEAs must provide if they choose not to
coordinate with the NIMAC. A few commenters requested that LEA
assurances provide the public with information to evaluate the capacity
of the LEA to provide materials to children who are blind or have print
disabilities. Some commenters stated that the assurances provided by
LEAs that choose not to coordinate with the NIMAC should be done
annually and in writing.
Several commenters requested that the regulations provide a means
for the public to obtain information about which LEAs choose not to
coordinate with the NIMAC. A few commenters recommended requiring LEAs
to report to the Department whether they choose to coordinate with the
NIMAC. Some commenters requested that the Department publish the
assurances made in accordance with Sec. 300.210(b) by LEAs that choose
not to coordinate with the NIMAC.
Discussion: The process by which LEAs choose not to coordinate with
the NIMAC and the assurances that LEAs must provide if they choose not
to coordinate with the NIMAC are determined by each State. Section
300.210(b)(2), consistent with section 613(a)(6)(B) of the Act, states
that, if an LEA chooses not to coordinate with the NIMAC, the LEA must
provide an assurance to the SEA that the LEA will provide instructional
materials to blind persons or other persons with print disabilities in
a timely manner. Therefore, it would be unnecessary and burdensome to
require LEAs to provide
[[Page 46626]]
assurances to the Department or to require LEAs to report to the
Department whether they choose to coordinate with the NIMAC. Each State
has its own mechanisms and processes for obtaining assurances from its
LEAs, and we believe it would be inappropriate for these regulations to
define the process by which LEAs inform the SEA that they choose not to
coordinate with the NIMAC or to specify the content of the assurances
that LEAs must provide to the SEA if they choose not to coordinate with
the NIMAC. Similarly, it is up to each State to determine whether and
how the State will provide information to the public about LEAs in the
State that choose not to coordinate with the NIMAC.
Changes: None.
Comment: Some commenters proposed that the regulations require LEAs
that choose not to coordinate with the NIMAC to annually report to the
public on when children with disabilities receive their materials, how
print materials are provided in a timely manner, and the steps the LEA
has taken to ensure that materials are provided at the same time as
materials are provided to children without disabilities. Other
commenters recommended requiring LEAs that choose not to coordinate
with the NIMAC to develop and publish their policies and procedures
that govern how they maintain and distribute NIMAS files.
Discussion: We believe that imposing additional data collection and
reporting requirements, such as those requested by the commenters, on
LEAs that choose not to coordinate with the NIMAC is a matter that is
best left to the States. States are responsible for ensuring that
accessible instructional materials are provided in a timely manner to
all children with disabilities who need them, and are, therefore, in
the best position to know what controls, if any, are needed in their
State to ensure that LEAS comply with the requirements in Sec.
300.210(b)(3). All LEAs, regardless of whether they choose to
coordinate with the NIMAC, must ensure that children with disabilities
who need instructional materials in accessible formats receive them in
a timely manner, consistent with Sec. 300.210(b)(3).
Changes: None.
Comment: A few commenters requested that the Department provide
information to LEAs on the NIMAC and the NIMAS so that LEAs can make an
informed choice regarding whether to coordinate with the NIMAC.
Discussion: The Department recognizes the need to provide
information to LEAs regarding the NIMAC and the NIMAS. The Department
has already provided numerous informational sessions on the NIMAC and
NIMAS and more are planned following the publication of the regulations
and approval of the NIMAC procedures. Information about the NIMAC
Technical Assistance Center is available at the following Web site:
http://www.aph.org/nimac/index.html Information on the NIMAS can be obtained at: http://nimas.cast.org.
Changes: None.
Early Intervening Services (Sec. 300.226)
Comment: One commenter recommended clarifying that early
intervening services should not be used to delay the evaluation of
children suspected of having a disability.
Discussion: We believe that Sec. 300.226(c), which states that
nothing in Sec. 300.226 will be construed to delay appropriate
evaluation of a child suspected of having a disability, makes clear
that early intervening services may not delay an appropriate evaluation
of a child suspected of having a disability.
Changes: None.
Comment: One commenter expressed concern that the requirements for
early intervening services do not adequately protect the child's right
to FAPE and recommended that the requirements include provisions
regarding notice, consent, and withdrawal of consent, as well as
guidelines for referrals for evaluation.
Discussion: Children receiving early intervening services do not
have the same rights and protections as children identified as eligible
for services under sections 614 and 615 of the Act. Section 300.226(c),
consistent with section 613(f)(3) of the Act, is clear that early
intervening services neither limit nor create a right to FAPE.
Changes: None.
Comment: Some commenters recommended that the regulations specify
how long a child may receive early intervening services before an
initial evaluation for special education services under Sec. 300.301
is conducted.
Discussion: We do not believe it is appropriate or necessary to
specify how long a child can receive early intervening services before
an initial evaluation is conducted. If a child receiving early
intervening services is suspected of having a disability, the LEA must
conduct a full and individual evaluation in accordance with Sec. Sec.
300.301, 300.304 and 300.305 to determine if the child is a child with
a disability and needs special education and related services.
Changes: None.
Comment: A few commenters suggested clarifying that Part B funds
for early intervening services should not be used for any child
previously identified as being a child with a disability.
Discussion: A child previously identified as being a child with a
disability who currently does not need special education or related
services would not be prevented from receiving early intervening
services. For example, a child who received special education services
in kindergarten and had services discontinued in grade 1 (because the
public agency and the parent agreed that the child was no longer a
child with a disability), could receive early intervening services in
grade 2 if the child was found to be in need of additional academic and
behavioral supports to succeed in the general education environment. We
believe that language should be added to Sec. 300.226 to clarify that
early intervening services are for children who are not currently
identified as needing special education or related services.
Changes: We have modified Sec. 300.226(a) to clarify that early
intervening services are available to children who currently are not
identified as needing special education or related services.
Comment: One commenter recommended specifying that unless LEAs have
significant over-identification and over-representation of minority
students in special education, LEAs may not use Federal Part B funds
for early intervening services unless they can demonstrate that all
eligible children are receiving FAPE. Another commenter suggested
prohibiting the use of Part B funds for early intervening services if
an LEA is not providing FAPE to all eligible children.
Discussion: The Act does not restrict the use of funds for early
intervening services only to LEAs that can demonstrate that all
eligible children with disabilities are receiving FAPE. Section
613(f)(1) of the Act generally permits LEAs to use funds for early
intervening services for children in kindergarten through grade 12
(with a particular emphasis on children in kindergarten through grade
3) who have not been identified as needing special education or related
services, but who need additional academic and behavioral support to
succeed in a general education environment. No other restrictions on
this authority, such as a requirement that the LEA first demonstrate
that it is providing FAPE to all eligible children, are specified or
appropriate. The authority to use some Part B funds for early
intervening
[[Page 46627]]
services has the potential to benefit special education, as well as the
education of other children, by reducing academic and behavioral
problems in the regular educational environment and reducing the number
of referrals to special education that could have been avoided by
relatively simple regular education interventions. Therefore, we
believe the use of Part B funds for early intervening services should
be encouraged, rather than restricted.
In one instance, however, the Act requires the use of funds for
early intervening services. Under section 618(d)(2)(B) of the Act, LEAs
that are identified as having significant disproportionality based on
race and ethnicity with respect to the identification of children with
disabilities, the placement of children with disabilities in particular
educational settings, and the incidence, duration, and type of
disciplinary actions taken against children with disabilities,
including suspensions and expulsions, are required to reserve the
maximum amount of funds under section 613(f)(1) of the Act to provide
early intervening services to children in the LEA, particularly to
children in those groups that were significantly over-identified. This
requirement is in recognition of the fact that significant
disproportionality in special education may be the result of
inappropriate regular education responses to academic or behavioral
issues.
Changes: None.
Comment: One commenter recommended permitting LEAs to spend funds
for early intervening services on literacy instruction programs that
target at-risk limited English proficient students.
Discussion: There is nothing in the Act that would preclude LEAs
from using Part B funds for early intervening services, including
literacy instruction, that target at-risk limited English proficient
students who have not been identified as needing special education or
related services, but who need additional academic and behavioral
support to succeed in a general education environment.
Changes: None.
Comment: One commenter requested clarification as to whether ESAs
or other public institutions or agencies, in addition to LEAs, have the
authority to provide early intervening services.
Discussion: We do not believe any clarification is necessary
because Sec. 300.226, consistent with section 613(f) of the Act,
states that LEAs may use Part B funds to develop and implement
coordinated early intervening services. As defined in Sec. 300.28(b),
local educational agency or LEA includes ESAs and any other public
institution or agency having administrative control and direction of a
public elementary school or secondary school, including a public
nonprofit charter school that is established as an LEA under State law.
Changes: None.
Comment: Some commenters suggested modifying the regulations to
permit children age 3 through 21 to receive early intervening services.
The commenters stated that this change would allow schools to provide
early academic and behavioral supports to preschool children.
Discussion: Early intervening services may not be used for
preschool children. Section 300.226(a) tracks the statutory language in
section 613(f)(1) of the Act, which states that early intervening
services are for children in kindergarten through grade 12, with a
particular emphasis on children in kindergarten through grade 3.
Changes: None.
Comment: One commenter recommended clarifying in the regulations
that early intervening services are not equivalent to early
intervention services.
Discussion: We do not believe any changes are necessary to the
regulations to clarify the difference between early intervening
services provided under Part B of the Act and early intervention
services provided under Part C of the Act. Following is a description
of the two types of services:
Early intervening services provided under section 613(f) of the Act
are services for children in kindergarten through grade 12 (with a
particular emphasis on children in kindergarten through grade 3) who
have not been identified as needing special education and related
services, but who need additional academic and behavioral support to
succeed in a general education environment.
Early intervention services, on the other hand, are services for
children birth through age two that are designed to meet the
developmental needs of infants and toddlers with disabilities under
section 632 in Part C of the Act. Section 632(5)(A) of the Act defines
infant or toddler with a disability as a child under the age of three
years who (a) is experiencing developmental delays in one or more of
the areas of cognitive development, physical development, communication
development, social or emotional development, and adaptive development,
or (b) has a diagnosed physical or mental condition that has a high
probability of resulting in developmental delay. In addition, some
States also provide early intervention services to infants and toddlers
who are at risk of having a developmental delay. The Part C regulations
will address, in detail, the early intervention services provided under
section 632 of the Act.
Changes: None.
Comment: One commenter asked whether the reference to
scientifically based academic and behavioral interventions in Sec.
300.226(b) means that such interventions must be aligned with
recommended practices and peer-reviewed research.
Discussion: Section 300.226(b) follows the specific language in
section 613(f)(2) of the Act and requires that in implementing
coordinated, early intervening services, an LEA may provide, among
other services, professional development for teachers and other
personnel to enable such personnel to deliver scientifically based
academic and behavioral interventions. The use of the term
scientifically based in Sec. 300.226(b) is intended to be consistent
with the definition of the term scientifically based research in
section 9101(37) of the ESEA. Because this definition of scientifically
based research is important to the implementation of Part B of the Act,
a reference to section 9101(37) of the ESEA has been added in new Sec.
300.35, and the full definition of the term has been included in the
discussion of new Sec. 300.35. Under the definition, scientifically
based research must be accepted by a peer-reviewed journal or approved
by a panel of independent experts through a comparably rigorous,
objective, and scientific review. We expect that the professional
development activities authorized under Sec. 300.226(b)(1) will be
derived from scientifically based research. The statute and regulations
do not refer to ``recommended practices,'' which is a term of art that,
generally, refers to practices that the field has adopted as ``best
practices,'' and which may or may not be based on evidence from
scientifically based research.
Changes: None.
Comment: Several commenters requested including related services
personnel, including speech pathologists and school psychologists, in
the development and delivery of educational and behavioral evaluations,
services, and supports for teachers and other school staff to enable
them to deliver coordinated, early intervening services.
Discussion: State and local officials are in the best position to
make decisions regarding the provision of early intervening services,
including the specific personnel to provide the
[[Page 46628]]
services and the instructional materials and approaches to be used.
Nothing in the Act or regulations prevents States and LEAs from
including related services personnel in the development and delivery of
educational and behavioral evaluations, services, and supports for
teachers and other school staff to enable them to deliver coordinated,
early intervening services.
Changes: None.
Comment: Several commenters recommended revising the regulations to
allow public agencies to use Part B funds for early intervening
services to purchase supplemental instructional materials to support
the activities in Sec. 300.226(b).
Discussion: We agree that supplemental instructional materials may
be used, where appropriate, to support early intervening activities.
The Conf. Rpt. in note 269 provides that
[E]arly intervening services should make use of supplemental
instructional materials, where appropriate, to support student
learning. Children targeted for early intervening services under
IDEA are the very students who are most likely to need additional
reinforcement to the core curriculum used in the regular classroom.
These are in fact the additional instructional materials that have
been developed to supplement and therefore strengthen the efficacy
of comprehensive core curriculum.
We believe the terms ``services'' and ``supports'' in Sec.
300.226(b)(2) are broad enough to include the use of supplemental
instructional materials. Accordingly, we believe that it is unnecessary
to add further clarification regarding the use of supplemental
instructional materials in Sec. 300.226. Of course, use of funds for
this purpose is subject to other requirements that apply to any use of
funds, such as the limitation on purchase of equipment in section 605
of the Act and applicable requirements in 34 CFR Parts 76 and 80.
Changes: None.
Comment: Several commenters requested requiring LEAs to provide
parents with written notice regarding their child's participation in
early intervening services, the goals for such services, and an
opportunity to refuse services. Some commenters requested requiring
LEAs to inform parents of their child's progress in early intervening
services at reasonable intervals.
Discussion: Section 300.226, consistent with section 613(f) of the
Act, gives LEAs flexibility to develop and implement coordinated, early
intervening services for children who are not currently receiving
special education services, but who require additional academic and
behavioral support to succeed in a regular education environment. Early
intervening services will benefit both the regular and special
education programs by reducing academic and behavioral problems in the
regular education program and the number of inappropriate referrals for
special education and related services. It would be overly restrictive
and beyond the Department's authority to modify the regulations to
include the additional requirements suggested by the commenters.
Changes: None.
Comment: One commenter stated that data should be collected
regarding the effectiveness of early intervening services. Several
commenters requested requiring LEAs to report to the SEA, and make
available to the public, the number of children receiving early
intervening services, the length of time the children received the
services, the impact of the services, and the amount of Federal Part B
funds used for early intervening services.
Discussion: Section 300.226(d), consistent with section 613(f)(4)
of the Act, requires LEAs that develop and maintain coordinated, early
intervening services to annually report to their SEA on the number of
children receiving early intervening services and the number of those
children who eventually are identified as children with disabilities
and receive special education and related services during the preceding
two year period (i.e., the two years after the child has received early
intervening services). We believe that these data are sufficient to
provide LEAs and SEAs with the information needed to determine the
impact of early intervening services on children and to determine if
these services reduce the number of referrals for special education and
related services. Requiring LEAs to collect and report data on the
implementation of early intervening services beyond what is
specifically required in section 613(f)(4) of the Act is unnecessary
and would place additional paperwork burdens on LEAs and SEAs.
Changes: None.
Comment: Some commenters requested that the meaning of the terms
``subsequently'' and ``preceding two year period'' in Sec.
300.226(d)(2) be clarified.
Discussion: Section 300.226(d)(2), consistent with section
613(f)(4)(B) of the Act, requires LEAs to report on the number of
children who are provided early intervening services who subsequently
receive special education and related services under Part B of the Act
during the preceding two years to determine if the provision of these
services reduces the number of overall referrals for special education
and related services. The Department intends for LEAs to report on
children who began receiving special education services no more than
two years after they received early intervening services. For the
preceding two year period, the LEA would report on the number of
children who received both early intervening services and special
education services during those two years.
Changes: None.
Direct Services by the SEA (Sec. 300.227)
Comment: Some commenters requested that the regulations specify
that SEAs providing direct services must make placement decisions based
on the child's individual needs and must comply with all requirements
for providing FAPE in the LRE.
Discussion: We do not believe any changes to the regulations are
necessary because Sec. 300.227(b), consistent with section 613(g)(2)
of the Act, clearly states that SEAs providing direct special education
and related services must do so in accordance with Part B of the Act.
Accordingly, the special education and related services provided under
Sec. 300.227 would be subject to the placement requirements in Sec.
300.116 and the LRE requirements in Sec. 300.114 and section 612(a)(5)
of the Act.
Changes: None.
Disciplinary Information (Sec. 300.229)
Comment: One commenter recommended clarifying that not all student
disciplinary records can be transmitted by public agencies.
Discussion: We believe that Sec. 300.229 is clear that not all
student disciplinary records can be transmitted by public agencies.
Section 300.229(a) provides that public agencies can transmit
disciplinary information on children with disabilities only to the
extent that the disciplinary information is included in, and
transmitted with, the student records of nondisabled children. Section
300.229(b) specifies the disciplinary information that may be
transmitted, which includes a description of any behavior engaged in by
the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant
to the safety of the child and other individuals involved with the
child.
Changes: None.
Comment: Some commenters requested that the required transmission
of student records include both the child's current IEP and any
statement of
[[Page 46629]]
current or previous disciplinary action related to weapons, drugs, or
serious bodily injury that has been taken against the child.
Discussion: It is important to clarify that the Act does not
require the transmission of student disciplinary information when the
child transfers from one school to another. Rather, section 613(i) of
the Act allows each State to decide whether to require its public
agencies to include disciplinary statements in student records and
transmit such statements with student records when a child transfers
from one school to another. The State's policy on transmitting
disciplinary information must apply to both students with disabilities
and students without disabilities.
Section 300.229(b) provides that if a State requires its public
agencies to include disciplinary statements in student records, these
disciplinary statements may include a description of any behavior
engaged in by the child that required disciplinary action, a
description of the disciplinary action taken, and any other information
that is relevant to the safety of the child and other individuals
involved with the child; disciplinary actions taken against a child
related to weapons, drugs, or serious bodily injury also could be
included in these descriptions. If a State adopts such a policy, Sec.
300.229(c) requires that the transmission of any of the child's student
records include the child's current IEP and any statement of current or
previous disciplinary action that has been taken against the child.
Therefore, with regard to the commenters' request that the
transmission of student records include any statement of current or
previous disciplinary action related to weapons, drugs, or serious
bodily injury that has been taken against the child, this information
would be transmitted only to the extent that disciplinary statements
are included in, and transmitted with, the student records of
nondisabled children.
Changes: None.
Comment: One commenter recommended requiring that the transmission
of a student's records include functional behavioral assessments and
behavior intervention plans.
Discussion: Any existing functional behavioral assessments and
behavioral intervention plans would be part of the materials that must
be transmitted under Sec. 300.323(g). In addition, if a State requires
student records to include disciplinary information and the child
transfers from one school to another, Sec. 300.229(c) requires that
the transmission of any of the child's student records include the
child's current IEP. Functional behavioral assessments and behavior
intervention plans are not required components of the IEP under Sec.
300.320. However, if a State considers functional behavioral
assessments and behavior intervention plans to be part of a student's
IEP, this information would be required to be transmitted when the
child transfers from one school to another, consistent with Sec.
300.229(c).
Changes: None.
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
Parental Consent (Sec. 300.300)
Comment: A few commenters noted that the terms, ``consent,''
``informed consent,'' ``agree,'' and ``agree in writing'' are used
throughout the regulations and stated that differences between the
terms should be clarified. One commenter recommended that the
regulations include the term ``informed'' every time the term
``parental consent'' is used.
Discussion: The use of these terms throughout the regulations is
consistent with their use in the Act. The definition of consent in
Sec. 300.9 includes the requirement that a parent be fully informed of
all information relevant to the activity for which consent is sought.
The definition also requires that a parent agree in writing to carrying
out the activity for which the parent's consent is sought. Therefore,
whenever the term ``consent'' is used in these regulations, it means
that the consent is both ``informed'' and ``written.'' Similarly, the
terms ``consent,'' ``informed consent,'' ``parental consent,'' and
``written informed consent,'' as used in these regulations, all are
intended to have the same meaning.
The meaning of the terms ``agree'' or ``agreement'' is not the same
as ``consent.'' ``Agree'' or ``agreement'' refer to an understanding
between the parent and the LEA about a particular question or issue.
There is no requirement that an agreement be in writing unless
specifically stated in the Act and regulations.
Changes: None.
Comment: One commenter recommended that the regulations clarify
what the required safeguards are if parents elect to receive notices
electronically or provide electronic or digital signatures for
consents, such as consent for an initial evaluation.
Discussion: Section 300.505, consistent with section 615(n) of the
Act, permits parents to elect to receive prior written notices,
procedural safeguards notices, and due process complaint notices by an
electronic mail communication, if the public agency makes that option
available. The Act does not specify documentation requirements if the
public agency makes the electronic notice delivery option available to
parents, and we believe that this is a matter that is best left to
States and LEAs that choose to use the electronic communication option.
In addition, States that wish to utilize electronic or digital
signatures for consent may do so if they choose. Consent under Sec.
300.9(b) requires a parent to understand and agree in writing to the
carrying out of the activity for which the parent's consent is sought.
Therefore, States that permit the use of electronic or digital
signatures for parental consent would need to take the necessary steps
to ensure that there are appropriate safeguards to protect the
integrity of the process.
Changes: None.
Parental Consent for Initial Evaluation (Sec. 300.300(a))
Comment: One commenter recommended that the regulations require a
public agency to conduct the following activities to obtain parental
consent for an initial evaluation: identify the child's parents and
their address and phone number; contact social service providers for
children who are wards of the State; provide parents with copies of the
Act; and inform parents of the consequences of withholding consent.
Discussion: The regulations already provide sufficient safeguards
regarding consent, and we believe that the changes requested would be
unduly burdensome. As a matter of practice, public agencies begin the
process of obtaining parental consent by identifying the parent and
contacting the parent by phone or through written correspondence, or
speaking to the parent in parent-teacher conferences.
We do not believe it is necessary to regulate to require public
agencies to contact social service agencies to obtain consent for
children who are wards of the State because it may not always be
necessary or appropriate, for example, when a child who is a ward of
the State has a foster parent who can act as a parent, consistent with
Sec. 300.30(a)(2). Additionally, section 614(a)(1)(D)(iii)(I) of the
Act provides that the public agency must make reasonable efforts to
obtain informed parental consent for children who are wards of the
State and
[[Page 46630]]
not residing with the parent. Public agencies are in the best position
to determine, on a case-by-case basis, when it is necessary to contact
social service providers to assist in obtaining parental consent for
children who are wards of the State.
We also do not believe that additional regulations are necessary to
require public agencies to inform parents of the consequences of
withholding consent for an initial evaluation or to provide parents
with copies of the Act. Section 300.503, consistent with section
615(c)(1) of the Act, already requires that prior written notice be
provided to parents before an initial evaluation, which will explain,
among other things, why the agency is proposing to conduct the
evaluation; a description of each evaluation procedure, assessment,
record, or report the agency used as a basis for proposing to conduct
the evaluation; and sources for the parent to contact to obtain
assistance in understanding the provisions under the Act. Additionally,
Sec. 300.504(a)(1), consistent with section 615(d)(1)(A)(i) of the
Act, requires the public agency to provide a copy of the procedural
safeguards to parents upon initial referral for an evaluation, which
provides information about parents' rights under the Act. Although we
do not believe the recommended requirements should be added to the
regulations, we will add the cross-references to the consent
requirements in Sec. 300.9, and the requirements for prior written
notice and the procedural safeguards notice in Sec. Sec. 300.503 and
300.504, respectively, to Sec. 300.300(a).
Changes: We have added cross-references to Sec. Sec. 300.9,
300.503, and 300.504 in Sec. 300.300(a).
Comment: One commenter recommended revising Sec. 300.300(a)(1)(ii)
and using the statutory language in section 614(a)(1)(D)(i) of the Act
to require that parental consent for evaluation may not be construed as
consent for placement for receipt of special education and related
services.
Discussion: We believe it is appropriate to use the phrase,
``initial provision of services'' in Sec. 300.300(a)(1)(ii), rather
than the statutory phrase ``consent for placement for receipt of
special education and related services,'' in section 614(a)(1)(D)(i) of
the Act to clarify that consent does not need to be sought every time a
particular service is provided to the child. In addition, the
distinction between consent for an initial evaluation and consent for
initial services is more clearly conveyed in Sec. 300.300(a)(1)(ii)
than in the statutory language, and is consistent with the Department's
longstanding position that ``placement'' refers to the provision of
special education services, rather than a specific place, such as a
specific classroom or specific school. We, therefore, decline to change
the regulation, as requested by the commenter.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the reference to ``parent'' in Sec. 300.300(a)(2) means
``biological or adoptive parent'' or anyone who meets the definition of
parent in Sec. 300.30.
Discussion: Section 300.300(a)(2) applies to circumstances in which
the child is a ward of the State and is not residing with the child's
parents, and requires the public agency to make reasonable efforts to
obtain parental consent from the parent for an initial evaluation. The
reference to ``parent,'' in this context, refers to anyone who meets
the definition of parent in Sec. 300.30, consistent with section
614(a)(1)(D)(iii) of the Act.
Changes: None.
Comment: One commenter requested clarification on the interplay
between new Sec. 300.300(a)(2) (proposed Sec. 300.300(a)(2)(ii)),
regarding circumstances when the public agency is not required to
obtain informed parental consent for an initial evaluation of a child
who is a ward of the State, and the requirements in Sec. 300.519(c),
which require that a surrogate parent be appointed for a child who is a
ward of the State.
Discussion: New Sec. 300.300(a)(2) (proposed Sec.
300.300(a)(2)(ii)), consistent with section 614(a)(1)(D)(iii)(II) of
the Act, creates an exception to the parental consent requirements for
initial evaluations for a child who is a ward of the State who is not
residing with the child's parent if the public agency has made
reasonable efforts to obtain the parent's consent, but is unable to
discover the whereabouts of the parent, the rights of the parent of the
child have been terminated under State law, or the rights of the parent
to make educational decisions have been subrogated by a judge under
State law and consent for the initial evaluation has been given by an
individual appointed by the judge to represent the child. New Sec.
300.300(a)(2) (proposed Sec. 300.300(a)(2)(ii)) permits the public
agency to proceed with the child's initial evaluation without first
obtaining the requisite parental consent only in the circumstances
detailed in Sec. 300.300(a)(2). Therefore, when one or more of the
circumstances in Sec. 300.300(a)(2) are met and a surrogate has not
yet been appointed, the public agency need not postpone the child's
evaluation to await the appointment of a surrogate. This is appropriate
because in situations involving requests for initial evaluations, in
most cases a surrogate parent has not yet been appointed and delaying
an initial evaluation until after a surrogate is appointed and has
given consent may not be in the best interests of the child. In
contrast, in most situations involving consent for reevaluation, a
surrogate parent should already have been appointed under Sec. 300.519
if no parent can be identified, the public agency has been unable to
locate a parent, the child is a ward of the State or the child is an
unaccompanied homeless youth. Therefore, we do not think it is
appropriate to apply the provisions in Sec. 300.300(a)(2) to
reevaluation situations.
Nothing in this section is intended to relieve a public agency of
its obligation to ensure that the rights of a child who is a ward of
the State are protected through the appointment of a surrogate parent
in accordance with the procedures in Sec. 300.519(b) through (h). Once
a surrogate parent is appointed in accordance with the procedures in
Sec. 300.519(b) through (h), that person assumes the responsibilities
of a parent under the Act, and the public agency must seek consent from
that individual.
Moreover, if a child has a foster parent who can act as a parent,
as defined in Sec. 300.30(a)(2), or a person such as a grandparent or
step-parent who is legally responsible for the child's welfare, and
that person's whereabouts are known or the person can be located after
reasonable efforts by the public agency, parental consent would be
required for the initial evaluation.
We believe that the phrase ``except as provided in paragraph (a)(2)
of this section (regarding consent for wards of the State)'' in
proposed Sec. 300.300(a)(1)(i) may incorrectly convey that a public
agency is not required to make reasonable efforts to obtain informed
consent from the parent of a child who is a ward of the State, or from
a surrogate parent, foster parent, or other person meeting the
definition of a parent in Sec. 300.30(a). Therefore, we will remove
the phrase. To clarify that the provisions in Sec. 300.300(a)(2) apply
only to initial evaluations, and not reevaluations, we will modify both
Sec. Sec. 300.300(a)(2) and (c)(1).
Changes: We have removed the phrase ``except as provided in
paragraph (a)(2) of this section (regarding consent for wards of the
State)'' in Sec. 300.300(a)(1)(i), for clarity. We have also added
introductory language to
[[Page 46631]]
Sec. 300.300(a)(2) to specify that it applies only to initial
evaluations, and we have changed the cross-reference in Sec.
300.300(c)(1) to refer to Sec. 300.300(a)(1).
Comment: One commenter recommended that the regulations specify the
minimum steps that public agencies must take to obtain consent for
initial evaluations from parents of children who are wards of the
State. Another commenter recommended that the regulations define
``reasonable efforts,'' as used in new Sec. 300.300(a)(1)(iii)
(proposed Sec. 300.300(a)(2)(i)). One commenter recommended requiring
LEAs to maintain documentation of their efforts to obtain parental
consent for initial evaluations, including attempts to obtain consent
by telephone calls, visits to the parent's home, and correspondence in
the parent's native language. Several commenters requested that the
requirements in current Sec. 300.345(d) be included in new Sec.
300.300(a)(2)(i) (proposed Sec. 300.300(a)(2)(ii)(A)). Current Sec.
300.345(d) requires a public agency to document the specific steps it
has taken to arrange a mutually convenient time and place for an IEP
Team meeting (e.g., detailed records of telephone calls, any
correspondence sent to the parents, visits made to the parent's home or
place of employment) and it is cross-referenced in current Sec.
300.505(c)(2) to identify documentation of the reasonable measures that
an LEA took to obtain consent for a reevaluation.
Discussion: We believe it is important to emphasize that a public
agency must make reasonable efforts to obtain informed consent from the
parent for an initial evaluation to determine whether the child is a
child with a disability. This includes the parent of a child who is a
ward of the State. Therefore, we will add a new paragraph (a)(1)(iii)
to Sec. 300.300 to make clear that a public agency must make
reasonable efforts to obtain informed parental consent whenever a
public agency seeks to conduct an initial evaluation of a child to
determine whether the child is a child with a disability. This
requirement applies to all children including children who are wards of
the State. With the addition of this new paragraph, the requirement for
public agencies to make reasonable efforts to obtain informed consent
from the parent for an initial evaluation for children who are wards of
the State in Sec. 300.300(a)(2)(i) is no longer necessary and will be
removed.
We also agree with the commenters that a public agency should
document and make the same reasonable efforts to obtain consent for an
initial evaluation from a parent, including a parent of a child who is
a ward of the State, that are required when a public agency attempts to
arrange a mutually convenient time and place for an IEP Team meeting
(e.g., detailed records of telephone calls, any correspondence sent to
the parents, visits made to the parent's home or place of employment),
and will add a new paragraph (d)(5) to make this clear. We recognize
that the statute uses both ``reasonable measures'' and ``reasonable
efforts'' when referring to a public agency's responsibility to obtain
parental consent for an evaluation, initial services, and a
reevaluation. We believe these two phrases, when used in this context,
have the same meaning and, therefore, have used ``reasonable efforts''
throughout the regulations related to parental consent for consistency.
Changes: We have added a new paragraph (a)(1)(iii) to Sec. 300.300
to require a public agency to make reasonable efforts to obtain
informed parental consent for an initial evaluation. We will remove
Sec. 300.300(a)(2)(i) because it is redundant with the new paragraph.
Section 300.300(a)(2) has been reformatted consistent with the removal
of paragraph (a)(2)(i). We also have added a new paragraph (d)(5) to
Sec. 300.300 to require a public agency to document its attempts to
obtain parental consent using the procedures in Sec. 300.322(d).
Comment: A few commenters asked whether a public agency must obtain
consent for an initial evaluation from the biological or adoptive
parent of the child when there is another person who meets the
definition of parent in Sec. 300.30. Another commenter recommended the
regulations clarify whether a public agency must seek informed consent
for an initial evaluation from a biological or adoptive parent when a
surrogate parent has already been appointed.
Discussion: Section 300.30(b)(1) provides that, when more than one
party is qualified to act as a parent, the biological or adoptive
parent, when attempting to act as the parent under the Act, must be
presumed to be the parent, unless the biological or adoptive parent
does not have legal authority to make educational decisions for the
child.
If a surrogate parent already has been appointed because the public
agency, after reasonable efforts, could not locate a parent, the public
agency would not have to again attempt to contact other individuals
meeting the definition of parent in Sec. 300.30 to seek consent.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the qualifications of a judge-appointed surrogate parent in
Sec. 300.519(c) would apply to new Sec. 300.300(a)(2)(iii) (proposed
Sec. 300.300(a)(2)(ii)(C)), regarding consent for an initial
evaluation for a child who is a ward of the State.
Discussion: Section 614(a)(1)(D)(iii)(II)(cc) of the Act, which is
the basis for new Sec. 300.300(a)(2)(iii) (proposed Sec.
300.300(a)(2)(ii)(C)), provides that the public agency is not required
to obtain informed consent from the parent for an initial evaluation of
a child who is a ward of the State and is not living with the child's
parent if the rights of the parent to make educational decisions have
been subrogated by a judge in accordance with State law and consent for
an initial evaluation has been given by an individual appointed by the
judge to represent the child. This is a special situation, limited only
to children who are wards of the State not living with a parent and
limited only to the situation of seeking consent for an initial
evaluation. A person appointed under this provision is not a surrogate
parent as that term is used in these regulations. The requirements of
Sec. 300.519(c) do not apply to persons authorized to provide consent
for initial evaluations under this provision.
It is noteworthy that the provision in new Sec. 300.300(a)(2)(iii)
(proposed Sec. 300.300(a)(2)(ii)(C)) is only a limited exception to
the requirement to obtain informed parental consent for an initial
evaluation. Most children will not have a surrogate parent already
appointed at this stage of their involvement with services under the
Act. However, if a child has a surrogate parent appointed under Sec.
300.519(c), and the rights of that person to make educational decisions
for the child have not been subrogated by a judge under State law, the
public agency would have to seek informed parental consent from that
person.
Changes: None.
Comment: One commenter recommended revising Sec. 300.300(a)(3) to
prohibit a public agency from pursuing an initial evaluation without
parental consent. Another commenter recommended requiring a public
agency to use the due process procedures to conduct an initial
evaluation if the parent does not provide consent and the public agency
believes that the child would not otherwise receive needed services. A
few commenters stated that Sec. 300.300(a)(3) is inconsistent with
statutory language and opposed language stating that the public agency
may, but is not required to, pursue the
[[Page 46632]]
initial evaluation of a child whose parents have refused to consent or
failed to respond to a request for consent.
Discussion: Section 300.300(a)(3) is consistent with section
614(a)(1)(D)(ii) of the Act, which states that a public agency may
pursue the initial evaluation of a child using the procedural
safeguards if a parent does not provide consent or fails to respond to
a request to provide consent for an initial evaluation. Consistent with
the Department's position that public agencies should use their consent
override procedures only in rare circumstances, Sec. 300.300(a)(3)
clarifies that a public agency is not required to pursue an initial
evaluation of a child suspected of having a disability if the parent
does not provide consent for the initial evaluation. State and local
educational agency authorities are in the best position to determine
whether, in a particular case, an initial evaluation should be pursued.
Changes: None.
Comment: A few commenters recommended clarifying the parental
consent requirements for an initial evaluation. Many commenters
recommended that LEAs maintain documentation that the parent has been
fully informed and understands the nature and scope of the evaluation.
One commenter recommended that the regulations require that informed
parental consent for an initial evaluation be documented in writing.
Discussion: Section 300.300(a)(1)(i), consistent with section
614(a)(1)(D)(i)(I) of the Act, is clear that the public agency
proposing to conduct an initial evaluation to determine if a child
qualifies as a child with a disability under Sec. 300.8 must obtain
consent from the parent of the child before conducting the evaluation.
Consent, as defined in Sec. 300.9, means that the parent has been
fully informed in his or her native language, or other mode of
communication, and understands and agrees in writing to the initial
evaluation. The methods by which a public agency seeks to obtain
parental consent for an initial evaluation (beyond the requirement that
the public agency use the parent's native language or mode of
communication) and how a public agency documents its efforts to obtain
the parent's written consent are appropriately left to the discretion
of SEAs and LEAs.
Changes: None.
Comment: A few commenters recommended that the regulations include
language clarifying that a public agency is not in violation of the
FAPE requirements if the public agency does not pursue an initial
evaluation when the parent refuses to consent or fails to respond to a
request for consent. One commenter recommended adding language to the
regulations to clarify that if a parent refuses to consent to an
initial evaluation, the child would not be considered to be a child
with a disability.
Discussion: While we agree that a public agency would not be in
violation of the FAPE requirements for failing to pursue an initial
evaluation through due process, we do not believe that a change to the
regulations is necessary. The FAPE requirements in Sec. Sec. 300.101
through 300.112, consistent with section 612(a) of the Act, apply only
to a child with a disability, as defined in Sec. 300.8 and section
602(3) of the Act. A child would not be considered a child with a
disability under the Act if the child has not been evaluated in
accordance with Sec. Sec. 300.301 through 300.311 and determined to
have one of the disabilities in Sec. 300.8(a), and because of that
disability, needs special education and related services.
Further, Sec. 300.534(c)(1), consistent with section 615(k)(5)(C)
of the Act, provides that a public agency would not be deemed to have
knowledge that a child is a child with a disability, for disciplinary
purposes, if a parent has not allowed the child to be evaluated or
refuses services under the Act.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that the public agency is not in violation of the child find
requirements if the public agency does not pursue an initial evaluation
when the parent refuses to consent or fails to respond to a request for
consent.
Discussion: We agree that States and LEAs should not be considered
to be in violation of their obligation to locate, identify, and
evaluate children suspected of being children with disabilities under
Sec. 300.111 and section 612(a)(3) of the Act if they decline to
pursue an evaluation (or reevaluation) to which a parent has refused or
failed to consent. We will add language to the regulations to make this
clear.
Changes: We have added language to Sec. 300.300(a)(3) and (c)(1)
to clarify that a State or public agency does not violate the
requirements of Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if
it declines to pursue an evaluation or reevaluation to which a parent
has refused or failed to consent.
Comment: A few commenters recommended that the regulations define
``fails to respond'' as used in Sec. 300.300(a)(3).
Discussion: Section 300.300(a)(3), consistent with section
614(a)(1)(D)(ii)(I) of the Act, states that if a parent of a child
enrolled in public school, or seeking to be enrolled in public school,
does not provide consent for an initial evaluation, or the parent
``fails to respond'' to a request to provide consent, the public agency
may, but is not required to, pursue the initial evaluation of the child
by utilizing the procedural safeguards, if appropriate, except to the
extent inconsistent with State law relating to such parental consent.
The meaning of ``fails to respond,'' in this context, is generally
understood to mean that, in spite of a public agency's efforts to
obtain consent for an initial evaluation, the parent has not indicated
whether the parent consents or refuses consent to the evaluation. We
believe the meaning is clear in the regulations and, therefore, decline
to define the phrase in these regulations.
Changes: None.
Comment: One commenter recommended that the regulations include
language to require a public agency to provide the following
information (in the parent's native language) to a parent who refuses
consent or fails to respond to a request for consent for an initial
evaluation: The reasons why the public agency believes the child may be
eligible for special education; confirmation that the requested
evaluation and any subsequent special education services will be
provided at no cost and scheduled in cooperation with parents with
transportation provided; The nature of the evaluations and credentials
of evaluators; the types of special education services that the child
could receive if eligible; and the risks of delaying an evaluation.
Discussion: The prior written notice requirements in Sec. 300.503,
consistent with section 615(c)(1) of the Act, address many of the
concerns raised by the commenter. Consistent with Sec. 300.503(b) and
(c), prior notice must be given to the parents when a public agency
proposes to evaluate a child and would explain why the public agency
believes the child needs an evaluation to determine whether the child
is a child with a disability under the Act; describe each evaluation
procedure, assessment, record, or report the agency used as a basis for
proposing that the child needs an evaluation; explain that the parents
have protection under the Act's procedural safeguards; provide sources
for parents to contact to obtain assistance in understanding the
provisions of the Act; and describe other factors that are relevant to
the agency's proposal to conduct the evaluation of the child.
[[Page 46633]]
In addition to the prior written notice, Sec. 300.504(a)(1),
consistent with section 615(d)(1)(A)(i) of the Act, requires that a
copy of the procedural safeguards notice be given to parents upon an
initial referral or parental request for an evaluation. Consistent with
Sec. 300.503(c) and Sec. 300.504(d), the prior written notice and the
procedural safeguards notice, respectively, must be written in language
understandable to the general public and be provided in the native
language of the parent or other mode of communication used by the
parent, unless it is clearly not feasible to do so.
As a matter of practice, public agencies provide parents with
general information about the special education and related services
that are available to eligible children with disabilities and inform
the parent that the public agency's evaluation is provided at no cost.
We believe that this information, along with the information provided
in the prior written notice and procedural safeguards notice, will help
a parent determine whether there are any risks of delaying an
evaluation. Therefore, we do not believe additional regulations are
necessary.
With regard to information regarding an evaluator's credentials, we
do not believe it is necessary to require public agencies to provide
this information to parents because Sec. 300.304(c)(1)(v) and section
614(b)(3)(A)(iv) of the Act require the public agency to ensure that
the evaluation is conducted by trained and knowledgeable personnel.
If transportation to an evaluation outside the school environment
is necessary, the public agency would have to provide it, as a part of
its obligation to ensure that all eligible children are located,
identified, and evaluated. However, we do not believe that the parents
need to be notified of this fact because, in most cases, children can
be evaluated at school during the school day and there is no
requirement that a parent be present during the evaluation. Thus,
requiring that all parents be notified about transportation to
evaluations would be unnecessarily burdensome.
Changes: None.
Parental Consent for Services (Sec. 300.300(b))
Comment: A few commenters requested that the Department address
situations in which a child is receiving special education services and
a parent wants to withdraw consent or refuse services because the
parent believes the child no longer needs special education services. A
few commenters stated that public agencies should not be allowed to use
the procedural safeguards to continue to provide special education and
related services to a child whose parents withdraw consent for the
continued provision of special education and related services.
Discussion: We are considering the question of whether parents who
previously consented to the initiation of special education services
should have the right to subsequently remove their child from special
education services. We anticipate publishing a notice of proposed
rulemaking in the near future seeking public comment on this issue.
Changes: None.
Comment: One commenter recommended changing the regulations to
allow the public agency to provide services in anticipation of
receiving parental consent when the public agency initiates a due
process hearing to obtain parental consent for initial services.
Discussion: To implement the change requested by the commenter
would be inconsistent with the Act. Section 614(a)(1)(D)(i)(II) of the
Act requires a public agency to obtain informed parental consent before
providing initial special education and related services to a child. In
addition, a public agency may not initiate a due process hearing to
provide special education and related services to a child when a parent
refuses to consent to initial services, consistent with section
614(a)(1)(D)(ii)(II) of the Act. A child whose parent has refused
consent for initial services would not be provided special education
and related services and would continue to receive general education
services.
Changes: None.
Comment: A few commenters requested that the regulations clarify
the meaning of ``initial provision of services'' as used in Sec.
300.300(b).
Discussion: We believe Sec. 300.300(b) is clear that the ``initial
provision of services'' means the first time a parent is offered
special education and related services after the child has been
evaluated in accordance with the procedures in Sec. Sec. 300.301
through 300.311, and has been determined to be a child with a
disability, as defined in Sec. 300.8.
Changes: None.
Comment: One commenter requested that the regulations permit
mediation when a parent of a child refuses to consent to the provision
of special education and related services. A few commenters recommended
revising the regulations to require a public agency to use the due
process procedures, or other alternative dispute resolution procedures,
if a parent refuses to consent to initial services.
Discussion: Section 300.300(b)(2), consistent with section
614(a)(1)(D)(ii)(II) of the Act, is clear that if a parent fails to
respond or refuses to consent to initial services, the public agency
may not use the mediation procedures in Sec. 300.506 or the due
process procedures in Sec. Sec. 300.507 through 300.516 in order to
obtain agreement or a ruling that the services may be provided to a
child.
Changes: None.
Comment: One commenter stated that additional documentation is
necessary if a parent does not provide consent for initial services and
suggested adding language to the regulations to require public agencies
to document the steps they have taken to obtain parental consent for
initial services and to maintain them in the child's permanent file.
Another commenter recommended requiring that the parent's refusal to
consent for initial services occur during a properly convened IEP Team
meeting. The commenter also suggested requiring that the documentation
of a parent's refusal to provide consent include evidence that all
options waived by the parent have been explained, that the parent has
refused services, and the reasons for the parent's refusal.
Discussion: We believe that a public agency must make reasonable
efforts to obtain informed consent from the parent for the initial
provision of special education and related services to the child and
will make this clear in Sec. 300.300(b). We noted in our discussion
regarding the reasonable efforts that a public agency must make to
obtain parental consent for an initial evaluation to determine whether
the child is a child with a disability, that we added a new paragraph
(d)(5) to Sec. 300.300 that provides that to meet the reasonable
efforts requirement, a public agency must document its attempts to
obtain consent using the procedures in Sec. 300.322(d). We believe a
public agency should make these same reasonable efforts to obtain
parental consent for initial services, and will include this in new
Sec. 300.300(d)(5).
We do not believe it is necessary or appropriate to require a
public agency to maintain additional documentation, beyond that
required in new Sec. 300.300(d)(5), of a parent's refusal to provide
consent for initial services or to prescribe where this documentation
must be obtained or maintained. Public agencies understand the
importance of properly documenting a parent's refusal to consent to the
initial provision of special education and related services and are in
the best position to determine any additional documentation that is
[[Page 46634]]
necessary and where to obtain and maintain such documentation.
Changes: We have added a new paragraph (b)(2) to Sec. 300.300 to
clarify that the public agency must make reasonable efforts to obtain
informed consent from the parent for the initial provision of special
education and related services to the child. Subsequent paragraphs have
been renumbered accordingly. We also have included a reference to new
Sec. 300.300(b)(2) in new Sec. 300.300(d)(5) that requires a public
agency to document its attempts to obtain consent using the procedures
in Sec. 300.322(d).
Comment: One commenter recommended adding language to clarify that
if a parent does not consent to initial services, the child would be
considered a part of the general education enrollment and subject to
the same disciplinary provisions as nondisabled children.
Discussion: The language requested by the commenter is not
necessary because section 615(k)(5)(C) of the Act already provides for
situations in which a parent refuses consent for initial services and
the child subsequently engages in behavior that violates a code of
student conduct. Section 300.534(c)(1), consistent with section
615(k)(5)(C) of the Act, provides that a public agency would not be
deemed to have knowledge that a child is a child with a disability if
the parent of the child has not allowed an evaluation of the child
pursuant to Sec. Sec. 300.301 through 300.311, or has refused services
under this part. Therefore, such a child would not be able to assert
any of the protections provided to children with disabilities under the
Act, and would be subject to the same disciplinary procedures as any
other child.
Changes: None.
Comment: A few commenters recommended requiring a public agency to
refer parents who do not provide consent for initial services to the
State's PTI center so that the parents can be advised of the benefits
of special education and their rights and responsibilities under the
Act.
Discussion: We do not believe it would be appropriate to require a
public agency to refer parents to a particular agency or program. Such
matters are best left to States and LEAs to decide and should not be
included in the regulations.
Changes: None.
Comment: One commenter recommended that the regulations require a
public agency to report a parent for suspected child abuse or neglect
to the appropriate agency if the public agency believes that the
parent's failure or refusal to consent to initial services meets the
definition of child abuse or neglect under the State's mandatory
reporting law.
Discussion: It is not necessary to include the requirement
recommended by the commenter in these regulations, as the issue would
already be addressed by State law, if under State law a parent's
failure to consent to initial services under the Act was considered
child abuse or neglect.
Changes: None.
Comment: Numerous commenters expressed concern about new Sec.
300.300(b)(4)(ii) (proposed Sec. 300.300(b)(3)(ii)), which provides
that if a parent fails to consent for initial services or refuses to
respond to a request for consent, the public agency is not required to
convene an IEP Team meeting or develop an IEP for the child. A few
commenters stated that this should be permitted only when a parent
refuses services, but not when a parent fails to respond to a request
for consent for initial services. A few commenters stated that the
regulations should be revised to clarify that this applies only to
subsequent IEP Team meetings, not the initial IEP Team meeting. One
commenter recommended revising the regulations to require an IEP Team
meeting to be held and an IEP developed to provide a basis for informed
consent.
Discussion: New 300.300(b)(4)(ii) (proposed Sec.
300.300(b)(3)(ii)) follows the specific language in section
614(a)(1)(D)(ii)(III)(bb) of the Act and reflects the new provision in
the Act that relieves public agencies of any potential liability for
failure to convene an IEP Team meeting or develop an IEP for a child
whose parents have refused consent or failed to respond to a request
for consent to the initial provision of special education and related
services. It does not, however, prevent a public agency from convening
an IEP Team meeting and developing an IEP for a child as a means of
informing the parent about the services that would be provided with the
parent's consent.
Changes: None.
Comment: A few commenters questioned how a parent could be
adequately informed of the services the parent is refusing if the
public agency is not required to develop an IEP when the parent refuses
to consent to the initial provision of special education and related
services.
Discussion: We understand the commenters' concern that a parent of
a child with a disability who refuses to consent to the provision of
special education and related services may not fully understand the
extent of the special education and related services their child would
receive without the development of an IEP for their child. However, we
do not view the consent provisions of the Act as creating the right of
parents to consent to each specific special education and related
service that their child receives. Instead, we believe that parents
have the right to consent to the initial provision of special education
and related services. ``Fully informed,'' in this context, means that a
parent has been given an explanation of what special education and
related services are and the types of services that might be found to
be needed for their child, rather than the exact program of services
that would be included in an IEP.
Changes: None.
Comment: One commenter stated that the regulations should include
sanctions for parents who repeatedly fail to respond to requests for
consent from public agencies, such as paying the costs incurred by
agencies attempting to obtain consent.
Discussion: The Act does not authorize sanctions against parents
who fail to respond to requests for consent.
Changes: None.
Parental Consent for Reevaluations (Sec. 300.300(c))
Comment: Several commenters recommended allowing public agencies to
use the due process procedures to override a parent's refusal to
consent to a reevaluation.
Discussion: Override of parental refusal to consent to a
reevaluation is already addressed in the regulations. Section
300.300(c) states that each public agency must obtain informed parental
consent in accordance with Sec. 300.300(a)(1) prior to conducting any
reevaluation of a child with a disability. Section 300.300(a)(3) allows
a public agency to override parental refusal to consent to an initial
evaluation by utilizing the mediation procedures under Sec. 300.506 or
the due process procedures under Sec. Sec. 300.507 through 300.516.
The cross-reference in Sec. 300.300(c)(1)(i) to the provision in Sec.
300.300(a)(1) provides the basis for allowing a public agency to
override the parent's refusal of consent to a reevaluation. However, we
believe it is important to state this more directly and will,
therefore, add language to Sec. 300.300(c)(1) to clarify that if a
parent refuses to consent to a reevaluation, the public agency may, but
is not required to, pursue the reevaluation by using the procedural
safeguards in subpart E of this part.
Changes: We have restructured Sec. 300.300(c)(1) and added a new
[[Page 46635]]
Sec. 300.300(c)(1)(ii) to clarify that a public agency may, but is not
required to, pursue a reevaluation using the procedural safeguards.
Comment: One commenter requested that the regulations clarify a
public agency's responsibilities for a reevaluation if the agency has
taken reasonable measures to obtain consent and the parent has failed
to respond.
Discussion: We do not believe that further clarification in the
regulations is necessary. Section 300.300(c)(2), consistent with
section 614(c)(3) of the Act, is clear that a public agency may conduct
a reevaluation of a child with a disability, if the public agency can
demonstrate that it has made reasonable efforts to obtain such consent
and the child's parent has failed to respond to a request for consent.
Changes: None.
Comment: One commenter recommended that the regulations require a
public agency to obtain parental consent for any tests needed for a
reevaluation that were not used for the initial evaluation or previous
reevaluations.
Discussion: We do not agree that a change should be made. Section
614(c)(3) of the Act, which is incorporated in Sec. 300.300(c),
already requires a public agency to obtain parental consent before
conducting any tests needed for a reevaluation, regardless of whether
the tests differ from tests used in previous evaluations of the child.
Changes: None.
Comment: Many commenters recommended retaining current Sec.
300.505(c)(2), which requires a public agency to document the specific
reasonable measures it has taken to obtain parental consent for a
reevaluation, including detailed records of telephone calls made or
attempted and the results of those calls; copies of any correspondence
sent to the parents and any responses received; and detailed records of
visits made to the parents' home or place of employment and the results
of those visits. One commenter suggested that if the requirements in
current Sec. 300.505(c)(2) were not retained, the regulations should
define reasonable measures as at least three good-faith attempts to
contact a parent. Many commenters stated that current Sec.
300.505(c)(2) must be retained because it is protected by section
607(b) of the Act, which provides that the Secretary may not publish
final regulations that would procedurally or substantively lessen the
protections provided to children with disabilities in the regulations
that were in effect on July 20, 1983.
Discussion: We agree that the requirements in current Sec.
300.505(c)(2) should be retained. We noted in our discussions regarding
the reasonable efforts that a public agency must make to obtain
parental consent for an initial evaluation and the initial provision of
services, that we added a new paragraph (d)(5) to Sec. 300.300 that
provides that to meet the reasonable efforts requirement, a public
agency must document its attempts to obtain consent using the
procedures in Sec. 300.322(d). These are the same procedures in
current Sec. 300.505(c)(2). Therefore, we will include a reference to
Sec. 300.300(c)(2)(i) in new Sec. 300.300(d)(5).
Changes: We included a reference to Sec. 300.300(c)(2)(i) in new
Sec. 300.300(d)(5).
Other Consent Requirements (Sec. 300.300(d))
Comment: Many commenters recommended that the regulations include
language clarifying that a public agency is not authorized to override
the lack of parental consent for an initial evaluation for children who
are home schooled or placed in a private school by the parents at their
own expense. One commenter recommended removing the phrase ``public
school or seeking to enroll in public school'' in Sec. 300.300(a)(3)
to permit a public agency to override lack of parental consent for
children who are home schooled or placed in a private school by parents
at their own expense.
Discussion: We agree with the commenters who recommended that, for
children who are home schooled or placed in a private school by their
parents at their own expense, consent override should not be permitted.
We will add a new paragraph (4) to Sec. 300.300(d) to make this clear.
There are compelling policy reasons why the Act's consent override
procedures should be limited to children who are enrolled, or who are
seeking to enroll, in public school. Because the school district has an
ongoing obligation to educate a public school child it suspects has a
disability, it is reasonable for a school district to provide the
parents with as much information as possible about their child's
educational needs in order to encourage them to agree to the provision
of special education services to meet those needs, even though the
parent is free, ultimately, to reject those services. The school
district is accountable for the educational achievement of all of its
children, regardless of whether parents refuse the provision of
educationally appropriate services. In addition, children who do not
receive appropriate educational services may develop behavioral
problems that have a negative impact on the learning environment for
other children.
By contrast, once parents opt out of the public school system,
States and school districts do not have the same interest in requiring
parents to agree to the evaluation of their children. In such cases, it
would be overly intrusive for the school district to insist on an
evaluation over a parent's objection. The Act gives school districts no
regulatory authority over private schools. Moreover, the Act does not
require school districts to provide FAPE to children who are home
schooled or enrolled in private schools by their parents.
Public agencies do have an obligation to actively seek parental
consent to evaluate children attending private schools (including
children who are home schooled, if a home school is considered a
private school under State law) who are suspected of being children
with disabilities under the Act, in order to properly identify the
number of private school children with disabilities and consider those
children as eligible for equitable services under Sec. Sec. 300.132
through 300.144. However, this obligation does not extend to overriding
refusal of parental consent to evaluate parentally-placed private
school children.
Section 300.300(a)(3) provides that a public agency may override
parental consent for an initial evaluation only for children who are
enrolled in public school or seeking to be enrolled in public school,
so we are not making the suggested change in Sec. 300.300(a)(3).
Changes: We have added a new paragraph (4) to Sec. 300.300(d) to
clarify that consent override is not permitted for children who are
home schooled or placed in private schools by their parents.
Evaluations and Reevaluations
Initial Evaluations (Sec. 300.301)
Request for Initial Evaluation (Sec. 300.301(b))
Comment: Several commenters recommended that teachers and related
services providers be included as individuals who can refer a child for
an initial evaluation. A few commenters requested clarification as to
whether States can authorize other individuals who are acting on behalf
of a public agency (e.g., family court, probation officers, staff from
other public agencies) to refer a child for an initial evaluation, and
whether individuals responsible for protecting the welfare of a child
who are not acting on behalf of an SEA or LEA, such as physicians and
[[Page 46636]]
social workers, can refer a child for an initial evaluation.
Discussion: Section 614 (a)(1)(A) of the Act provides that an SEA,
other State agency, or LEA shall conduct a full and individual
evaluation of a child before the provision of special education and
related services. In Sec. 300.301(a), we interpret this language as
requiring public agencies, as that term is defined in Sec. 300.33, to
conduct evaluations, because those are the only agencies in the State
responsible for providing FAPE to eligible children. The same language
is used in section 614(a)(1)(B) of the Act to describe the agencies
that may initiate a request for an initial evaluation to determine if a
child is a child with a disability. We similarly interpret this
language to be referring to the entities that are public agencies under
Sec. 300.33. Therefore, Sec. 300.301(b) states that either a parent
or a public agency may initiate a request for an initial evaluation.
The language does not include employees of SEAs or LEAs (e.g., teachers
and related services providers), unless they are acting for the SEA or
LEA, or of other State agencies (e.g., probation officers, social
workers, or staff from State agencies that are not public agencies as
defined in Sec. 300.33).
The requirements in Sec. 300.301(b) pertain to the initiation of
an evaluation under Sec. Sec. 300.301 through 300.305 and should not
be confused with the State's child find responsibilities in Sec.
300.111 and section 612(a)(3) of the Act. The child find requirements
permit referrals from any source that suspects a child may be eligible
for special education and related services. Child find activities
typically involve some sort of screening process to determine whether
the child should be referred for a full evaluation to determine
eligibility for special education and related services. Therefore,
persons such as employees of the SEA, LEA, or other public agencies
responsible for the education of the child may identify children who
might need to be referred for an evaluation. However, it is the parent
of a child and the public agency that have the responsibility to
initiate the evaluation procedures in Sec. Sec. 300.301 through
300.311 and section 614 of the Act.
Changes: None.
Comment: Several commenters stated that the regulations should
clarify that the 60-day timeframe in Sec. 300.301(c) to complete an
evaluation does not begin if a parent requests an initial evaluation,
the LEA denies the request, and the parent challenges the LEA's
decision in a due process hearing.
Discussion: We believe the regulations already address the
commenters' concern. Section 300.301(b) provides that a parent may
initiate a request for an initial evaluation to determine if the child
is a child with a disability. If the public agency agrees to conduct
the evaluation, Sec. 300.304(a) requires the public agency to provide
notice to the parents, in accordance with Sec. 300.503, that describes
any evaluation procedures that the agency proposes to conduct. The
public agency must obtain informed consent for the evaluation,
consistent with Sec. Sec. 300.9 and 300.300, prior to conducting the
evaluation. The 60-day timeframe begins when the public agency receives
the consent for evaluation.
If, however, the public agency does not suspect that the child has
a disability and denies the request for an initial evaluation, the
public agency must provide written notice to the parents, consistent
with Sec. 300.503(b) and section 615(c)(1) of the Act, which explains,
among other things, why the public agency refuses to conduct an initial
evaluation and the information that was used as the basis to make that
decision. The parent may challenge such a refusal by requesting a due
process hearing, but the timeline for conducting the evaluation does
not begin prior to parental consent for evaluation. A parent would not
be able to give consent under this part without knowing what specific
evaluation procedures the public agency is proposing to conduct.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
whether a public agency has the right to deny a parent's request for an
initial evaluation.
Discussion: The regulations are sufficiently clear on this point.
Section 300.503(a), consistent with section 615(b)(3) of the Act,
provides that a public agency may refuse to initiate or change the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child, if the public agency provides
written notice. This includes situations in which a public agency
wishes to deny a parent's request for an initial evaluation. The
written notice must meet the requirements in Sec. 300.503(b). Thus,
for situations in which a public agency wishes to deny a parent's
request for an initial evaluation, the written notice would provide,
among other things, an explanation of why the public agency refuses to
conduct an initial evaluation and the information that was used to make
that decision. A parent may challenge the public agency's refusal to
conduct an initial evaluation by requesting a due process hearing.
Changes: None.
Procedures for Initial Evaluation (Sec. 300.301(c))
Comment: Numerous commenters requested that the regulations clarify
when the 60-day timeframe for a public agency to conduct an initial
evaluation begins. One commenter requested that the 60-day timeframe
include completing both the evaluation and eligibility determination.
Several commenters recommended reducing the timeframe for
evaluations from 60 days to 30 days. Some commenters recommended that
the 60-day timeframe be 60 school days. A few commenters stated that
the timeframe for evaluation should be longer if additional time is
required for specific assessments, such as behavioral assessments or
other assessments based on scientific practices.
Discussion: It would be inconsistent with the Act to reduce the
timeframe from 60 days to 30 days, require the 60-day timeframe to be
60 school days, extend the timeframe for particular types of
assessments, or require that the 60-day timeframe cover both the
evaluation and determination of eligibility. Section 614(a)(1)(C)(i)(I)
of the Act requires an initial evaluation to be conducted within 60
days of receiving parental consent for the evaluation or, if the State
establishes a timeframe within which the evaluation must be conducted,
within that timeframe. The regulations in Sec. 300.301(c) reflect this
requirement.
Changes: None.
Comment: A few commenters asked whether a State could establish a
timeframe of more than 60 days to complete an initial evaluation. A
significant number of commenters recommended that if a State
establishes its own timeframe within which an evaluation must be
conducted, that the timeframe be less, but not more, than 60 days.
Several commenters recommended that if a State has its own timeframe
for evaluation, the timeframe should be reasonable and ``reasonable''
should be defined. Some commenters recommended that if a State's
timeframe is greater than 60 days, the Department should provide
guidance to the State and to parents in that State. One commenter
recommended that if a State establishes its own timeframe, the State
must offer parents an adequate opportunity to assert their procedural
rights.
Discussion: Section 300.301(c), consistent with section
614(a)(1)(C)(i)(I) of the Act, requires an initial evaluation to be
completed within 60 days of receiving parental consent for evaluation
or, if the State establishes a
[[Page 46637]]
timeframe within which the evaluation must be conducted, within such
timeframe. The Department declines to require that a State-established
timeframe be less than 60 days or to place additional requirements on
States with timeframes of greater than 60 days because the Act gives
States the authority to establish different timeframes and imposes no
restrictions on State exercise of that authority. We believe this is
evidence of an intent to permit States to make reasoned determinations
of the appropriate period of time in which evaluations should be
conducted based on particular State circumstances.
Changes: None.
Comment: Numerous commenters requested clarification regarding the
timeframe to complete an initial evaluation and convene the IEP Team. A
few commenters stated that the timeframe from referral to IEP
development could be as long as 120 calendar days (30 days from
referral to consent; 60 days from consent to the eligibility
determination; and 30 days from the eligibility determination to
development of the IEP), and recommended that this timeframe be 60
days.
One commenter recommended that public agencies provide consent
forms to parents promptly after a referral for evaluation has been made
so that the child's evaluation is not delayed. A few commenters asked
how promptly an LEA must seek parental consent following a referral for
evaluation, and whether an LEA can wait until September to obtain
consent if a referral is made in June or July.
Discussion: We cannot change the timeframe for an initial
evaluation specified in section 614(a)(1)(C) of the Act. Section
614(a)(1)(C) of the Act requires that an initial evaluation be
conducted within 60 days of receiving parental consent for the
evaluation, or within the timeframe established by the State. Section
300.323(c) is a longstanding requirement that a meeting be held to
develop the child's IEP within 30 days of determining that a child
needs special education and related services. We decline, however, to
specify the timeframe from referral for evaluation to parental consent,
or the timeframe from the completion of an evaluation to the
determination of eligibility, as we are not in a position to determine
the maximum number of days that should apply to these periods in all
circumstances.
However, it has been the Department's longstanding policy that
evaluations be conducted within a reasonable period of time following
the agency's receipt of parental consent, if the public agency agrees
that an initial evaluation is needed to determine whether a child is a
child with a disability. Likewise, the Department believes that
eligibility decisions should be made within a reasonable period of time
following the completion of an evaluation.
The child find requirements in Sec. 300.111 and section
612(a)(3)(A) of the Act require that all children with disabilities in
the State who are in need of special education and related services be
identified, located, and evaluated. Therefore, it would generally not
be acceptable for an LEA to wait several months to conduct an
evaluation or to seek parental consent for an initial evaluation if the
public agency suspects the child to be a child with a disability.
If it is determined through the monitoring efforts of the
Department or a State that there is a pattern or practice within a
particular State or LEA of not conducting evaluations and making
eligibility determinations in a timely manner, this could raise
questions as to whether the State or LEA is in compliance with the Act.
With regard to the total timeframe from referral to IEP
development, this will vary based on a number of factors, including the
timing of parental consent following referral for an evaluation and
whether a State establishes its own timeframe to conduct an initial
evaluation. Given such factors, we do not believe it is feasible to
further regulate on this timeframe.
Changes: None.
Comment: Numerous commenters recommended that an initial evaluation
be conducted in an expedited timeframe for children who are homeless or
in the custody of a child welfare agency. The commenters stated that
public agencies should take into consideration the date on which the
child was first referred for evaluation by any public agency.
Discussion: Congress recognized the unique problems homeless
children face and included several new provisions in the Act to ensure
that homeless children and youth with disabilities have access to the
same services and supports as all other children with disabilities. The
Department recognizes that the high mobility rates of some homeless
children with disabilities (as well as other children, including some
children who are in the custody of a State child welfare agency) pose
unique challenges when a child is referred for an evaluation, but moves
to another district or State before an evaluation can be initiated or
completed. In such cases, the Department believes it is important that
the evaluations be completed as expeditiously as possible, taking into
consideration the date on which the child was first referred for
evaluation in any LEA. However, the high mobility rate of these
children and their potential range of evaluation needs means that any
specific expedited timeframe could be both too long to ensure that all
children are evaluated before they move, and too short to be reasonable
in all circumstances. There is nothing, however, in Part B of the Act
or these regulations that would prohibit a State from establishing its
own policies to address the needs of homeless children, including
adopting a timeframe for initial evaluations that is less than 60 days.
Changes: None.
Exception (Sec. 300.301(d))
Comment: Numerous commenters requested clarification regarding
whether the 60-day timeframe for initial evaluations could be extended
by mutual agreement between the parent and the public agency. A few
commenters asked whether the 60-day timeframe could be extended for
reasons other than the exceptions listed in Sec. 300.301(d), and
whether a State could include other exceptions in its State policies
and procedures.
Discussion: Congress was clear in limiting the exceptions to the
60-day timeframe to the situations in section 614(a)(1)(C)(ii) of the
Act. Therefore, we do not believe it is appropriate to include in the
regulations other exceptions, such as permitting a parent and a public
agency to mutually agree to extend the 60-day timeframe or to include
exceptions to the timeframe, that would be in addition to those in the
Act and listed in Sec. 300.301(d). However, the Act gives States
considerable discretion with a State-adopted timeframe. A State could
adopt a timeframe of 60 days or some other number of days, with
additional exceptions.
Changes: None.
Comment: A number of comments were received requesting
clarification on the provision in Sec. 300.301(d)(1), which allows an
extension of the 60-day or State-established timeframe to complete an
initial evaluation if the parent of a child repeatedly fails or refuses
to produce the child for an evaluation. A few commenters asked whether
the exception applies when a child is not available because of absences
on the days the evaluation is scheduled. Several commenters stated that
``produce'' does not necessarily mean the child's physical presence in
school. Other commenters requested that the regulations define
``repeatedly
[[Page 46638]]
fails'' and ``refuses to produce'' so that LEAs do not have to engage
in exhaustive efforts to obtain access to the child to complete the
evaluation.
One commenter recommended that the regulations clarify that an LEA
must document that it has made several attempts to address the parent's
concerns and clarify any confusion the parent may have about the
evaluation, as well as address issues that make it difficult for the
parent to bring the child to a scheduled evaluation, such as lack of
transportation and childcare.
Discussion: Section 300.301(d) follows the specific language in
section 614(a)(1)(C)(ii)(II) of the Act. We do not believe it is
appropriate or reasonable to define ``repeatedly fails'' or ``refuses
to produce'' because the meaning of these phrases will vary depending
on the specific circumstances in each case. For example, situations in
which a child is absent on the days the evaluation is scheduled because
the child is ill would be treated differently than if a parent
repeatedly fails to keep scheduled appointments. Similarly, situations
in which a parent fails to keep scheduled appointments when a public
agency repeatedly schedules the evaluation to accommodate the parent's
schedule would be treated differently than situations in which a public
agency makes no attempt to accommodate a parent's schedule.
We do not believe it is necessary to clarify that an LEA must
document that it has made several attempts to address a parent's
concerns and issues about the evaluation. As a matter of practice, LEAs
attempt to address parent's concerns and issues prior to scheduling an
evaluation because repeated cancellations of appointments or repeated
failures to produce the child for an evaluation are costly in terms of
staff time and effort.
Changes: None.
Comment: Numerous commenters recommended that there be an exception
to the 60-day timeframe when a child transfers to a new school before
an evaluation is completed.
Discussion: The exception referred to by the commenters is already
in the regulations. Section 300.301(d)(2), consistent with section
614(a)(1)(C)(ii)(I) of the Act, states that the 60-day or State-
established timeframe does not apply when a child transfers to a new
school before an evaluation is completed, if the new public agency is
making sufficient progress to ensure prompt completion of the
evaluation, and the parent and new public agency agree to a specific
time when the evaluation will be completed. While the exception to the
60-day timeframe, as stated in section 614(a)(1)(C)(ii)(I) of the Act
and paragraph (d)(2) of this section, only applies when a child
transfers to a school located in another public agency, we do not
believe the language in paragraph (d)(2), as proposed in the NPRM, is
necessarily clear on this matter. We, therefore, have added language in
paragraph (d)(2) to provide additional clarity. We believe it is
important that it is understood that the 60-day or State-established
timeframe does not apply when a child transfers from one school to
another school in the same public agency. When a child transfers from
one school to another school in the same public agency, we expect that
an initial evaluation will be conducted within 60 days of receiving
parental consent for the evaluation, or within the State-established
timeframe.
Changes: We have added language to Sec. 300.301(d)(2) to clarify
that the exception to the 60-day or State-established timeframe only
applies when a child transfers to a new school located in another
public agency.
Comment: Several comments were received on the provision in new
Sec. 300.301(e) (proposed Sec. 300.301(d)(2)(ii)) that allows an
exception to the 60-day or State-established timeframe, only if the new
public agency is making sufficient progress to ensure a prompt
completion of the evaluation and the parent and new public agency agree
to a specific time when the evaluation will be completed. One commenter
stated that schools would be unable to meet the 60-day timeframe for
children who transfer from another public agency if the new public
agency has not been notified of the evaluation timeframe. Another
commenter recommended that exceptions to the 60-day timeframe should
not be permitted because the term ``sufficient progress'' is not
defined. A few commenters requested that the regulations define
``sufficient progress.''
One commenter stated that there might be legitimate reasons for not
completing an evaluation within the 60-day timeframe, such as
differences in the assessment instruments used in the previous and new
public agency, and requested that the regulations provide guidance on
how a public agency should determine if appropriate progress is being
made.
One commenter recommended that if there is no date certain when an
evaluation must be completed when a child transfers public agencies,
the new public agency should conduct an evaluation within 60 days of
the enrollment date of the child; make reasonable efforts to obtain
evaluation information from the previous public agency; and consider
any available evaluation information from the previous public agency.
One commenter recommended requiring the new public agency to
contact the previous public agency within five days to request a report
of any actions taken to transfer the child's records, copies of
completed evaluations, a copy of the child's file, and an estimate as
to when the information will be sent. The commenter stated that public
agencies should be required to keep records of such attempts to inform
parents of all actions through written communication. The commenter
stated that if the information is not received within 15 days, the new
public agency should be required to begin a new evaluation and complete
it within the 60-day or State-established timeframe.
Discussion: The exceptions to the 60-day or State-established
timeframe must be permitted because they are statutory. Section
614(a)(1)(C)(ii)(I) of the Act, which is incorporated in Sec.
300.300(d)(2), provides that the 60-day or State-established timeframe
does not apply if a child enrolls in a school served by the public
agency after the relevant timeframe has begun, and prior to a
determination by the child's previous public agency as to whether the
child is a child with a disability. The exception applies only if the
subsequent public agency is making sufficient progress to ensure prompt
completion of the evaluation, and the parent and subsequent public
agency agree to a specific time when the evaluation will be completed.
We do not believe it is necessary to define the phrase ``sufficient
progress'' because the meaning will vary depending on the specific
circumstances in each case. As one commenter noted, there may be
legitimate reasons for not completing the evaluation within the 60-day
timeframe, such as differences in assessment instruments used in the
previous and new public agencies, and the length of time between a
child leaving one school and enrolling in the next school. Therefore,
we believe that whether a new public agency is making sufficient
progress to ensure prompt completion of an evaluation is best left to
the discretion of State and local officials and parents to determine.
It would be over-regulating to specify the number of days within
which a new public agency must request a child's records from the
previous public agency or to require the new public agency to document
its attempts to obtain the records and keep parents informed of all
[[Continued on page 46639]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 46639-46688]] Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities
[[Continued from page 46638]]
[[Page 46639]]
actions through written communication. We note, however, that Sec.
300.304(c)(5), consistent with section 614(b)(3)(D) of the Act,
requires each public agency to ensure that the evaluations of children
with disabilities who transfer from one school district to another
school district in the same school year are coordinated with the
children's prior and subsequent schools, as necessary, and as
expeditiously as possible, to ensure prompt completion of full
evaluations.
Additionally, new Sec. 300.323(g) (proposed Sec. 300.323(e)(2)),
consistent with section 614(d)(2)(C)(ii) of the Act, requires the new
school in which the child enrolls to take reasonable steps to promptly
obtain the child's records (including the IEP and supporting documents
and any other records relating to the provision of special education or
related services to the child) from the previous public agency in which
the child was enrolled. The previous public agency in which the child
was enrolled must also take reasonable steps to promptly respond to the
request from the new public agency. We believe that these requirements
will help to ensure that a child's records are promptly received by the
new public agency.
The Act does not require the evaluation of a child who is
transferring to a new school to be completed within 60 days of the
enrollment date of the child, as recommended by one commenter, and we
do not believe that such a requirement should be included in the
regulations. The completion of evaluations for children who transfer to
another school are subject to multiple factors and we decline to
regulate on a specific timeframe that would apply in all circumstances.
Changes: None.
Comment: One commenter recommended sanctions against a new public
agency that fails to make an effort to complete an evaluation of a
child who transfers to another school that was begun by a previous
public agency. The commenter stated that the previous public agency
should also be sanctioned for failure to cooperate with a new public
agency or for otherwise impeding the ability of the new public agency
to complete the evaluation promptly.
Discussion: As part of its general supervisory responsibilities in
Sec. 300.149 and section 612(a)(11) of the Act, each SEA is
responsible for ensuring that the requirements of Part B of the Act are
followed, including the requirements for children who transfer from one
public agency to another public agency within the school year. Whether
sanctions against a particular LEA are appropriate should be determined
by the SEA in the first instance, as they are in the best position to
determine what sanctions, technical assistance, or combination of the
two are likely to lead to future compliance. For that reason, we
decline to regulate with more specificity in this area.
Changes: None.
Screening for Instructional Purposes Is Not Evaluation (Sec. 300.302)
Comment: One commenter requested clarification on the difference
between screening and evaluation and recommended that the regulations
include specific examples of what constitutes screening, including
testing instruments that are appropriate to be used for screening to
determine appropriate instructional strategies. Many commenters
recommended permitting States to determine the screening process for
identifying appropriate instructional strategies.
One commenter stated that ``screening'' is too loosely defined and
may be confused with State regulations that require screening for a
child's entrance into school. The commenter recommended that the
regulations address issues such as the need for parental consent prior
to screening and a timeframe for screening subsequent to a request.
Discussion: An ``evaluation,'' as used in the Act, refers to an
individual assessment to determine eligibility for special education
and related services, consistent with the evaluation procedures in
Sec. Sec. 300.301 through 300.311. ``Screening,'' as used in Sec.
300.302 and section 614(a)(1)(E) of the Act, refers to a process that a
teacher or specialist uses to determine appropriate instructional
strategies. Screening is typically a relatively simple and quick
process that can be used with groups of children. Because such
screening is not considered an evaluation under Sec. Sec. 300.301
through 300.311 to determine eligibility for special education
services, parental consent is not required.
Section 300.302 does not address screening for a child's entrance
into school under a State's rules. Screening required under a State's
rules for a child's entrance into school is the responsibility of the
State and is not within the purview of the Act. We believe that the
provisions in Sec. Sec. 300.301 through 300.311, regarding
evaluations, and Sec. 300.302, regarding screening for instructional
purposes, are clear, and therefore, we do not believe it is necessary
to add language to the regulations.
We decline to provide specific examples of testing instruments to
determine appropriate instructional strategies because this will vary
based on the age of the child and the subject matter, and is best left
to State and local officials to determine. Likewise, the process for
screening, including the timeframe to complete the screening process,
is a decision that is best left to State and local officials to
determine, based on the instructional needs of the children.
Changes: None.
Comment: One commenter asked whether the provisions in Sec.
300.302, regarding screening, apply to a child with a disability, as
well as a child who has not been identified as a child with a
disability. One commenter noted that Sec. 300.302 refers to screening
of a child by a teacher or a specialist and asked who would be
considered a specialist. Another commenter requested clarification
regarding the term ``instructional strategies for curriculum
implementation,'' as used in Sec. 300.302.
Discussion: Section 300.302, consistent with section 614(a)(1)(E)
of the Act, states that the screening of a child by a teacher or
specialist to determine appropriate instructional strategies is not
considered an evaluation for purposes of determining eligibility for
special education and related services. This applies to a child with a
disability, as well as a child who has not been identified as a child
with a disability. Such screening, therefore, could occur without
obtaining informed parental consent for screening.
We believe the determination of who is considered a ``specialist''
should be left to the discretion of the public agency and should not be
specified in the regulations. The term, ``instructional strategies for
curriculum implementation'' is generally used to refer to strategies a
teacher may use to more effectively teach children.
Changes: None.
Comment: One commenter recommended clarification regarding whether
States can develop and implement policies that permit screening of
children to determine if evaluations are necessary.
Discussion: There is nothing in the Act that requires a State to,
or prohibits a State from, developing and implementing policies that
permit screening children to determine if evaluations are necessary.
However, screening may not be used to delay an evaluation for special
education and related services. If a child is referred for an
evaluation to determine eligibility for special education and related
services, the public agency must implement the requirements in
Sec. Sec. 300.301 through 300.311 and adhere to the 60-day or the
[[Page 46640]]
State-established timeframe to complete the evaluation.
Changes: None.
Reevaluations (Sec. 300.303)
Comment: A few commenters recommended clarifying that a parent is
not required to provide a reason for requesting a reevaluation. Several
commenters recommended that the regulations require a public agency to
provide prior written notice if a parent requests a reevaluation within
a year and the public agency refuses the request.
Discussion: Section 300.303(b), consistent with section
614(a)(2)(A)(ii) of the Act, states that a reevaluation may occur if
the child's parent or teacher requests a reevaluation. There is no
requirement that a reason for the reevaluation be given and we agree
that a reevaluation cannot be conditioned on the parent providing a
reason for requesting a reevaluation.
Section 300.303(b), consistent with section 614(a)(2)(B) of the
Act, provides that a reevaluation may occur not more than once a year
and must occur at least once every three years, unless the parent and
the public agency agree otherwise. If a parent requests more than one
reevaluation in a year and the public agency does not believe a
reevaluation is needed, we believe the regulations are clear that the
public agency must provide the parents with written notice of the
agency's refusal to conduct a reevaluation, consistent with Sec.
300.503 and section 615(c)(1) of the Act. We do not believe additional
regulations are necessary to address this specific instance of a public
agency's refusal to initiate a reevaluation and the written notice
requirements in Sec. 300.503.
Changes: None.
Comment: A few commenters requested clarification regarding whether
an evaluation that assesses skills that were not previously assessed in
the same related services area would be considered an evaluation or
reevaluation. One commenter, asked, for example, if a speech-language
evaluation was conducted to assess a child's speech impairment one
year, would an evaluation the following year to assess the child's
language abilities be considered an evaluation or reevaluation?
Discussion: An initial evaluation of a child is the first complete
assessment of a child to determine if the child has a disability under
the Act, and the nature and extent of special education and related
services required. Once a child has been fully evaluated, a decision
has been rendered that a child is eligible for services under the Act,
and the required services have been determined, any subsequent
evaluation of a child would constitute a reevaluation. In the example
provided by the commenter, the second evaluation would be considered a
reevaluation.
Changes: None.
Comment: One commenter recommended that reevaluations be required
at least once every three years because a child's mental and physical
profile changes in three years, and thus, so would the child's
educational needs. Another commenter recommended requiring LEAs to
inform parents that information from the most recent evaluation, which
could be three or more years old if the parent agrees that a
reevaluation is unnecessary, will be used in the development of a
child's IEP.
A few commenters recommended an accountability process for LEAs
that do not conduct reevaluations at least every three years. The
commenters recommended requiring LEAs to report to the State the number
of children with disabilities who qualified for, but were not given a
three-year reevaluation; provide prior written notice to parents if the
LEA determines that a three-year reevaluation is not necessary,
including the justification for such determination; and inform the
parent in writing in the parent's language that a three-year
reevaluation will be conducted if the parent disagrees with the LEA's
determination.
One commenter recommended requiring an LEA that does not conduct a
reevaluation at least once every three years to justify the reasons in
writing, especially if there is evidence that the child is not meeting
the State's academic achievement standards.
Discussion: Section 300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, requires a reevaluation to occur at least
once every three years, unless the parent and the public agency agree
that a reevaluation is unnecessary.
It would be overly burdensome to require an LEA to report to the
State the number of children with disabilities who qualified for, but
were not given a three-year reevaluation. Similarly, it would be overly
burdensome to require LEAs to inform parents that information from the
most recent evaluation will be used to develop a child's IEP or to
justify to the parent in writing the LEA's reasons for not conducting a
reevaluation every three years if the parent and the agency have
already agreed that a reevaluation is unnecessary.
If a parent requests a reevaluation and the public agency disagrees
that a reevaluation is needed, the public agency must provide prior
written notice to the parent, consistent with Sec. 300.503, that
explains, among other things, why the agency refuses to conduct the
reevaluation and the parent's right to contest the agency's decision
through mediation or a due process hearing.
In situations where a public agency believes a reevaluation is
necessary, but the parent disagrees and refuses consent for a
reevaluation, new Sec. 300.300(c)(1)(ii) is clear that the public
agency may, but is not required to, pursue the reevaluation by using
the consent override procedures described in Sec. 300.300(a)(3).
Changes: None.
Comment: One commenter recommended the following requirements for
the reevaluation of a child with the most significant cognitive
disabilities who is assessed based on alternate achievement standards:
(a) Prohibiting the public agency from automatically determining that a
three-year reevaluation is not needed; (b) requiring the public agency
to consider whether the child has been correctly identified to be
assessed against alternate achievement standards; and (c) requiring a
review of evaluation data to determine whether the child is, to the
extent possible, being educated in the general curriculum and assessed
with instruments aligned with that curriculum.
Discussion: We do not believe changes to the regulations are
necessary to address the commenter's concerns. The Act does not include
any special requirements for the reevaluation of a child with the most
significant cognitive disabilities who is assessed against alternate
achievement standards. It would be inconsistent with the individualized
evaluation and reevaluation procedures in section 614(b) and (c) of the
Act for a public agency to automatically determine that reevaluations
are unnecessary for a specific group of children. In determining
whether a reevaluation is needed, the parent and the public agency must
consider the child's educational needs, which may include whether the
child is participating in the general education curriculum and being
assessed appropriately.
Changes: None.
Comment: One commenter recommended clarifying that parents have the
right to prevent the over-testing of their child and that the
requirements for reevaluations do not diminish the rights of parents to
make decisions regarding the reevaluation. Several commenters
recommended that the regulations require States to establish
[[Page 46641]]
additional procedural safeguards to ensure that parents who agree that
a reevaluation is unnecessary are aware of the implications of their
decision.
Discussion: There is nothing in the Act to suggest that the
requirements for reevaluations in Sec. 300.303 diminish the rights of
parents. As stated in Sec. 300.303, consistent with section 614(a)(2)
of the Act, a parent can request a reevaluation at any time, and can
agree with the public agency to conduct a reevaluation more frequently
than once a year. Likewise, a parent and a public agency can agree that
a reevaluation is not necessary. We believe that in reaching an
agreement that a reevaluation is unnecessary, as provided for in Sec.
300.303(b), the parent and public agency will discuss the advantages
and disadvantages of conducting a reevaluation, as well as what effect
a reevaluation might have on the child's educational program.
Therefore, we do not agree with the commenter that additional
procedural safeguards are necessary to ensure that parents who agree
that a reevaluation is unnecessary are aware of the implications of
their decision.
Changes: None.
Comment: Many commenters requested that the opportunity to waive a
reevaluation occur only after the IEP Team has reviewed extant data to
determine whether additional data are needed to determine the child's
eligibility and the educational needs of the child.
Discussion: The review of existing data is part of the reevaluation
process. Section 300.305(a), consistent with section 614(c)(1) of the
Act, is clear that, as part of any reevaluation, the IEP Team and other
qualified professionals, as appropriate, must review existing
evaluation data, and on the basis of that review, and input from the
child's parents, identify what additional data, if any, are needed to
determine whether the child continues to have a disability, and the
educational needs of the child. Therefore, the opportunity for a parent
and the public agency to agree that a reevaluation is unnecessary
occurs before a reevaluation begins. It would be inconsistent with the
Act to implement the commenters' recommendation.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that waiving a three-year reevaluation must not be adopted as routine
agency policy or practice and should only be used in exceptional
circumstances. Another commenter recommended that the regulations
require the LEA to offer parents a reevaluation at least annually when
a parent agrees that a three-year reevaluation is not needed. Another
commenter recommended that the regulations clarify that a reevaluation
may be warranted more than once a year if the child's condition changes
or new information becomes available that has an impact on the child's
educational situation.
Discussion: It is not necessary to add language clarifying that
waiving three-year reevaluations must not be a routine agency policy or
practice because the regulations are clear that this is a decision that
is made individually for each child by the parent of the child and the
public agency. Section 300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, states that a reevaluation must occur at
least once every three years, unless the parent and the public agency
agree that a reevaluation is unnecessary. When a parent and a public
agency agree that a three-year reevaluation is unnecessary, there is no
requirement that the public agency offer the parent a reevaluation each
year. We do not believe that it is necessary to have such a requirement
because if parents who have waived a three year reevaluation later
decide to request an evaluation, they can do so. Also, public agencies
have a continuing responsibility to request parental consent for a
reevaluation if they determine that the child's educational or related
services needs warrant a reevaluation.
We do not believe additional regulations are needed to clarify that
a reevaluation can occur more than once a year. Section 300.303(b)(1),
consistent with section 614(a)(2)(B)(i) of the Act, already provides
that a reevaluation can occur more than once a year if the parent and
the public agency agree that a reevaluation is needed.
Changes: None.
Comment: One commenter asked whether the agreement between the
parent and the public agency that a reevaluation is unnecessary is the
same as parental consent in Sec. 300.9.
Discussion: An agreement between a parent and a public agency is
not the same as parental consent in Sec. 300.9. Rather, an agreement
refers to an understanding between a parent and the public agency and
does not need to meet the requirements for parental consent in Sec.
300.9.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that when a parent obtains an independent educational evaluation (IEE)
and provides new information to the public agency, a reevaluation could
be conducted more than once a year so that the public agency can verify
the results of the IEE.
Discussion: The changes recommended by the commenter are
unnecessary. Section 300.303(b)(1), consistent with section
614(a)(2)(B)(i) of the Act, is clear that a reevaluation can be
conducted more than once a year if the parent and the public agency
agree that it is necessary. Therefore, in the situation presented by
the commenter, if the results of an IEE provide new information that
the public agency and the parent agree warrant a reevaluation, the
parent and the public agency could agree to conduct a reevaluation.
Changes: None.
Comment: One commenter asked whether an IEE is considered a
reevaluation and whether an IEE is prohibited within less than a year
of the public agency's most recent evaluation.
Discussion: An IEE would be considered as a potential source of
additional information that the public agency and parent could consider
in determining whether the educational or related services needs of the
child warrant a reevaluation, but it would not be considered a
reevaluation. There is no restriction on when a parent can request an
IEE.
Changes: None.
Evaluation Procedures (Sec. 300.304)
Notice (Sec. 300.304(a))
Comment: Numerous commenters recommended that the regulations
clarify that the requirement for prior written notice to parents in
Sec. 300.304(a) is satisfied if the public agency notifies the parent
of the type(s) of assessment(s) that will be conducted. One commenter
stated that the prior written notice requirements for evaluations
should be satisfied if the public agency notifies the parent of the
type(s) of assessment(s) that will be conducted, the method(s) of
assessment, and the persons who will conduct the assessment(s).
Discussion: It would be inconsistent with the Act for a public
agency to limit the contents of the prior written notice in the manner
requested by the commenters. In addition to describing the evaluation
procedures the agency proposes to use, as required in Sec. 300.303(a),
section 615(c)(1) of the Act requires the prior written notice to
include an explanation of why the agency proposes to evaluate the
child; a description of each evaluation procedure, assessment, record,
or report the agency used as a basis for requesting the evaluation; a
statement that the parents have protection under the procedural
safeguards of the Act, and if this notice is not an initial referral
for
[[Page 46642]]
evaluation, the means by which a copy of the procedural safeguards can
be obtained; sources for the parents to contact to obtain assistance in
understanding the provisions of the Act; a description of other options
that were considered and why these reasons were rejected; and a
description of other factors that are relevant to the agency's proposal
to request consent for an evaluation.
Changes: None.
Comment: A few commenters stated that the notice to parents
regarding the evaluation procedures the agency proposes to use must be
provided in the native language of the parents, and recommended that
this requirement be clarified in Sec. 300.304.
Discussion: Information regarding the evaluation procedures the
agency proposes to use, as required in Sec. 300.303(a), is included in
the prior written notice required in Sec. 300.503(c)(1)(ii). Section
300.503(c)(1)(ii) requires, that the prior written notice to parents be
provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so. We see no need to repeat these requirements in Sec. 300.304 and
believe that doing so could cause confusion about the status of other
applicable requirements that would not be repeated in this section.
Changes: None.
Conduct of Evaluation (Sec. 300.304(b))
Comment: One commenter asked whether the ``procedure'' referred to
in Sec. 300.304(b)(2) is the same as the ``measure or assessment''
referred to in section 614(b)(2)(B) of the Act. Another commenter
recommended changing Sec. 300.304(b)(2) to follow the statutory
language.
Discussion: Section 300.304(b)(2), as proposed, states that the
public agency may not use any single ``procedure'' as the sole
criterion for determining whether a child is a child with a disability
and for determining an appropriate educational program for the child.
Section 614(b)(2)(B) of the Act states that in conducting an
evaluation, the LEA must not use any single ``measure or assessment''
as the sole criterion for determining whether a child is a child with a
disability or determining an appropriate educational program for the
child. We agree that the statutory language should be used in Sec.
300.304(b)(2) because use of the term ``procedure,'' rather than
``measurement or assessment,'' could be confusing.
Changes: We have changed ``procedure'' to ``measurement or
assessment'' in Sec. 300.304(b)(2), consistent with the statutory
language.
Comment: One commenter recommended adding the word ``always'' to
Sec. 300.304(b) to state that the public agency must ``always''
conduct an evaluation in accordance with the requirements in Sec.
300.304(b)(1) through (b)(3).
Discussion: Adding the word ``always'' to Sec. 300.304(b) would
not change the requirements for conducting an evaluation consistent
with Sec. 300.304(b). The regulation already requires a public agency
to conduct the evaluation in accordance with Sec. 300.304(b)(1)
through (b)(3) and there are no exceptions to that requirement.
Therefore, we decline to change Sec. 300.304(b) in the manner
recommended by the commenter.
Changes: None.
Comment: One commenter recommended that the regulations define
``technically sound instruments'' and ``relative contribution'' in
Sec. 300.304(b)(3). Another commenter recommended that the instruments
used in reevaluations to determine whether the child continues to have
a disability should be based on scientific research methods.
Discussion: Section 300.304(b)(3) follows the specific language in
section 614(b)(2)(C) of the Act and requires that the evaluation of a
child use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical and developmental factors. ``Technically sound instruments''
generally refers to assessments that have been shown through research
to be valid and reliable. Therefore, it would be redundant to add
language requiring that instruments used in reevaluations be based on
scientific research methods, as recommended by one commenter. The
phrase ``relative contribution,'' as used in Sec. 300.304(b)(3),
generally means that assessment instruments that allow the examiner to
determine the extent to which a child's behavior is a result of
cognitive, behavioral, physical, or developmental factors may be used
in evaluating a child in accordance with Sec. 300.304. Because the
meaning of ``relative contribution'' is context specific, we do not
believe it should be defined in these regulations.
Changes: None.
Other Evaluation Procedures (Sec. 300.304(c))
Comment: One commenter recommended clarifying that differences in
language and socialization practices must be considered when
determining eligibility for special education and related services,
including biases related to the assessment.
Discussion: We do not believe that the clarification requested by
the commenter is necessary. The Act and these regulations recognize
that some assessments may be biased and discriminatory for children
with differences in language and socialization practices. Section
614(b)(3)(A)(i) of the Act requires that assessments and other
evaluation materials used to assess a child under the Act are selected
and administered so as not to be discriminatory on a racial or cultural
basis. Additionally, in interpreting evaluation data for the purpose of
determining eligibility of a child for special education and related
services, Sec. 300.306(c) requires each public agency to draw upon
information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, as well as
information regarding a child's physical condition, social or cultural
background, and adaptive behavior. We believe that these provisions
provide adequate protection for the concerns raised by the commenter.
Changes: None.
Comment: One commenter requested that the regulations clarify that
a public agency should not use the ``not clearly feasible'' exception
in Sec. 300.304(c)(1)(ii) to improperly limit a child's right to be
evaluated in the child's native language or other mode of
communication.
Discussion: Section 300.304(c)(1)(ii), consistent with section
614(b)(3)(A)(ii) of the Act, requires that assessments and other
evaluation materials used to assess a child be provided and
administered in the child's native language or other mode of
communication and in the form most likely to yield accurate information
on what the child knows and can do, unless it is clearly not feasible
to so provide or administer. We agree that this provision should not be
improperly used to limit evaluations in a child's native language, but
we do not believe that a change to the regulations is necessary or that
it would prevent inappropriate application of the existing rule.
Changes: None.
Comment: One commenter recommended including ``behavior'' in the
list of areas to be evaluated in Sec. 300.304(c)(4). Another commenter
recommended requiring a functional behavioral assessment to be part of
a child's evaluation whenever any member of the IEP Team requests it or
raises concerns about the child's behavior. One commenter asked why
physical assessments were not included
[[Page 46643]]
in the list of assessments that should be conducted.
Discussion: Section 300.304(c)(4) requires the public agency to
ensure that the child is assessed in all areas related to the suspected
disability. This could include, if appropriate, health, vision,
hearing, social and emotional status, general intelligence, academic
performance, communicative status, and motor abilities. This is not an
exhaustive list of areas that must be assessed. Decisions regarding the
areas to be assessed are determined by the suspected needs of the
child. If a child's behavior or physical status is of concern,
evaluations addressing these areas must be conducted. No further
clarification is necessary.
Changes: None.
Comment: Many commenters recommended that the evaluation report
include a description of the extent to which an assessment varied from
standard conditions because there are few assessments that produce
valid and reliable information for English language learners suspected
of having a disability. Several commenters stated that it is standard
practice for professionals administering assessments to include
information in their reports when assessments are conducted using
nonstandard conditions. One commenter recommended that the regulations
require all evaluation reports to clearly indicate the language or
other mode of communication used in assessing a child and a
determination of whether using such language or other mode of
communication yielded accurate information.
Discussion: As stated by several commenters, it is standard test
administration practice to include in the evaluation report the extent
to which an assessment varied from standard conditions, including the
language or other mode of communication that was used in assessing a
child. It is, therefore, unnecessary to include this requirement in the
regulations.
Changes: None.
Comment: Many commenters recommended that the regulations require
public agencies to provide parents with evidence that the assessments
to be used are reliable and valid for their particular use, as well as
assurances that the assessments will be administered in the child's
primary language or mode of communication. The commenters also
recommended that public agencies be required to provide parents with
information regarding the assumptions being made about the tests and
the inferences that can be drawn from the test results.
Discussion: Section 300.304(a), consistent with section 614(b)(1)
of the Act, requires the public agency to provide notice to the parents
of a child with a disability, in accordance with Sec. 300.503, that
describes the evaluation procedures the agency proposes to conduct. To
require public agencies to provide all parents with the specific
information recommended by the commenters would be burdensome for
public agencies, and could be overwhelming for some parents, and
therefore, we decline to add such a requirement to the regulations.
While we understand that some parents will want the detailed
information mentioned by the commenter, parents can always request such
additional information before providing informed written consent for
the evaluation or reevaluation.
Changes: None.
Comment: A few commenters recommended that the regulations require
comprehensive psychological and educational evaluations to rule out
alternate causes of functional impairments in academic achievement.
Discussion: We believe the regulations already address the
commenters' concerns and we do not believe any further clarification is
necessary. Section 300.304(c)(6) requires that evaluations are
sufficiently comprehensive to identify all of the child's special
education and related services needs, whether or not commonly linked to
the disability category in which the child has been identified. In
addition, Sec. 300.306(b), consistent with section 614(b)(5) of the
Act, states that a child must not be determined to be a child with a
disability if the determinant factor for that determination is lack of
appropriate instruction in reading or math, or limited English
proficiency.
Changes: None.
Comment: Several commenters recommended that the requirements in
new Sec. 300.301(d)(2) and (e) (proposed Sec. 300.301(d)(2)(i) and
(ii)), regarding children who transfer to another public agency before
an initial evaluation is completed, should be cross-referenced in Sec.
300.304(c)(5).
Discussion: We agree that a cross-reference in Sec. 300.304(c)(5)
is appropriate.
Changes: We have added ``consistent with Sec. 300.301(d)(2) and
(e),'' following ``possible'' in Sec. 300.304(c)(5).
Comment: None.
Discussion: In reviewing Sec. 300.304(c)(5), we determined that
Sec. 300.304(c)(5) should be amended to refer to children with
disabilities who transfer to another public agency ``in the same school
year'' rather than ``in the same academic year'' because that is the
term most commonly understood by parents and school officials.
Changes: We have changed ``academic year'' to ``school year'' in
Sec. 300.304(c)(5).
Comment: One commenter recommended adding language regarding
scientifically based special education and related services to Sec.
300.304(c)(6).
Discussion: Section 300.304(c)(6) requires that the evaluation of a
child with a disability be sufficiently comprehensive to identify all
the child's special education and related services needs, whether or
not commonly linked to the disability category in which the child has
been classified. We believe that the focus on providing scientifically
based special education and related services is clear in the Act and
these regulations and do not believe it is necessary to refer to
``scientifically based'' services each time we refer to special
education and related services. Therefore, we decline to add this
language in Sec. 300.304(c)(6), as requested by the commenter.
Changes: None.
Additional Requirements for Evaluations and Reevaluations (Sec.
300.305)
Review of Existing Evaluation Data (Sec. 300.305(a))
Comment: One commenter stated that a comma should be added after
``current classroom-based'' in Sec. 300.305(a)(1)(ii) to clarify that
a review of existing evaluation data for a child must include, as
appropriate, data from three types of assessments: Current classroom-
based, local, or State assessments.
Discussion: We agree with the commenter and will revise the
language consistent with the commenter's suggestion and consistent with
section 614(c)(1)(A)(ii) of the Act. The changes will clarify that a
review of existing evaluation data on a child must include, as
appropriate, current classroom-based, local, or State assessment data.
Changes: We have inserted a comma following ``classroom based'' and
``local'' in Sec. 300.305(a)(1)(ii), consistent with the statutory
language.
Comment: One commenter asked whether a public agency must conduct a
reevaluation when a reevaluation is requested to determine the child's
educational and functional needs, but the child's eligibility for
special education and related services is not in question.
Discussion: Section 300.305(a)(2), consistent with section
614(c)(1)(B) of
[[Page 46644]]
the Act, states that one of the purposes of a reevaluation is to
determine the educational needs of the child, including whether any
additions or modifications to the special education and related
services are needed to enable the child to meet the child's IEP goals
and to participate in the general education curriculum. Thus, if a
reevaluation is requested to determine the child's educational needs
when the child's continued eligibility is not in question, the public
agency must either conduct the reevaluation or provide notice to the
parents as to why the public agency believes a reevaluation is
unnecessary.
Changes: None.
Requirements if Additional Data Are Not Needed (Sec. 300.305(d))
Comment: One commenter requested that the regulations define or
remove the phrase ``qualified professionals, as appropriate'' in Sec.
300.305(d)(1).
Discussion: Section 300.305(d)(1) follows the specific language in
section 614(c)(1) of the Act and refers to the decision made by the IEP
Team and ``other qualified professionals, as appropriate'' regarding
whether additional data are needed to determine whether a child
continues to be a child with a disability and the child's educational
needs. The phrase, ``qualified professionals, as appropriate'' is used
to provide flexibility for public agencies to include other
professionals who may not be a part of the child's IEP Team in the
group that determines if additional data are needed to make an
eligibility determination and determine the child's educational needs.
We believe that public agencies should have flexibility in determining
how to define ``qualified professionals'' and we do not believe a
definition should be included in the regulations.
Changes: None.
Evaluations Before Change in Eligibility (Proposed Evaluations Before
Change in Placement) (Sec. 300.305(e))
Comment: One commenter stated that the heading for Sec.
300.305(e), ``Evaluations before change in placement'' should be
changed because the regulations that follow do not deal with changes in
placement. Another commenter requested clarification regarding the
meaning of the term ``placement.'' The commenter stated that Sec.
300.305(e) uses the term to mean that special education services are no
longer required, but that this is not the meaning when used in the
context of alternative educational placements. The commenter also asked
whether moving a child from a self-contained classroom to a resource
room is a change of placement.
Discussion: We agree that the heading for Sec. 300.305(e) should
be changed to more accurately reflect the requirements in this
subsection. We will, therefore, change the heading to ``Evaluations
before change in eligibility,'' which is consistent with the heading in
section 614(c)(5) of the Act.
With regard to the commenter's question about whether moving a
child from a self-contained classroom to a resource room would be a
change of placement, we believe that it would be, as it would change
the child's level of interaction with his or her nondisabled peers.
However, as noted previously, the term ``change of placement'' should
not have been used in connection this regulation.
In the example provided by the commenter, generally, if a child is
moved from a self-contained classroom to a resource room, it is likely
that the child's current IEP cannot be implemented in the resource
room, because the educational program in the resource room is likely to
be substantially and materially different than the educational program
in the self-contained classroom or the educational program in the
resource room would change the level of interaction with nondisabled
peers. Therefore, this situation would likely be a change of placement
under the Act.
Changes: We have removed the heading ``Evaluations before change in
placement'' in Sec. 300.305(e) and replaced it with ``Evaluations
before change in eligibility'' for clarity and consistency with the
heading in section 614(c)(5) of the Act.
Comment: Many commenters recommended that evaluations for other
institutions (e.g., vocational rehabilitation agencies, colleges and
universities) should be required before a child graduates from
secondary school with a regular diploma or exceeds the age limit for
FAPE. However, a number of commenters disagreed and stated that public
agencies should not be required to conduct evaluations that will be
used to meet the entrance or eligibility requirements of another
institution or agency. One commenter requested clarification regarding
whether schools must provide updated evaluations for college testing
and admissions purposes and recommended including language in the
regulations that explicitly states that public agencies are not
required to conduct tests that are needed for admission to
postsecondary programs. Another commenter recommended that the
regulations clarify that LEAs have responsibility for providing the
postsecondary services that are included in the summary of the child's
academic achievement and functional performance.
One commenter requested requiring a reevaluation before a child
exits the school system. Another commenter recommended clarifying that
a comprehensive evaluation is not required for children aging out of
special education.
A number of commenters provided recommendations on the information
that should be included in the summary of a child's academic and
functional performance required in Sec. 300.305(e)(3). Commenters
suggested that the summary report should include information about the
child's disability; the effect of the disability on the child's
academic and functional performance (sufficient to establish
eligibility under the Americans with Disabilities Act and Section 504
of the Rehabilitation Act, if appropriate); any needed modifications or
adaptations essential to the child's success; the child's most recent
evaluations by professionals, including the child's academic
achievement and functional performance levels; assistive technology and
other supports used by the child; and any modifications and supports
that would facilitate the child's successful transition to
postsecondary education or employment.
Discussion: We do not believe that the regulations should require
public agencies to conduct evaluations for children to meet the
entrance or eligibility requirements of another institution or agency
because to do so would impose a significant cost on public agencies
that is not required by the Act. While the requirements for secondary
transition are intended to help parents and schools assist children
with disabilities transition beyond high school, section 614(c)(5) in
the Act does not require a public agency to assess a child with a
disability to determine the child's eligibility to be considered a
child with a disability in another agency, such as a vocational
rehabilitation program, or a college or other postsecondary setting.
The Act also does not require LEAs to provide the postsecondary
services that may be included in the summary of the child's academic
achievement and functional performance. We believe it would impose
costs on public agencies not contemplated by the Act to include such
requirements in the regulations.
It would be inconsistent with the Act to require public agencies to
conduct evaluations for children who are exiting the school system
because they exceed the age for eligibility under State law. Section
300.305(e)(2), consistent with
[[Page 46645]]
section 614(c)(5)(B)(i) of the Act, is clear that an evaluation in
accordance with Sec. Sec. 300.304 through 300.311 is not required
before the termination of a child's eligibility under the Act due to
graduation from secondary school with a regular diploma or due to
exceeding the age eligibility for FAPE under State law.
Section 300.305(e)(3), consistent with section 614(c)(5)(B)(ii) of
the Act, states that the summary required when a child graduates with a
regular diploma or exceeds the age eligibility under State law must
include information about the child's academic achievement and
functional performance, as well as recommendations on how to assist the
child in meeting the child's postsecondary goals. The Act does not
otherwise specify the information that must be included in the summary
and we do not believe that the regulations should include a list of
required information. Rather, we believe that State and local officials
should have the flexibility to determine the appropriate content in a
child's summary, based on the child's individual needs and
postsecondary goals.
Changes: None.
Comment: One commenter stated that public agencies should not be
required to conduct an evaluation of a child who graduates with a
regular diploma because a regular diploma means that the child has met
the same requirements and achieved the same or similar level of
competency as the child's nondisabled classmates. The commenter also
requested that the regulations define a regular diploma to mean that
the child has reached a comparable level of achievement as the child's
nondisabled classmates.
Discussion: Section 300.305(e)(2) specifically states that a public
agency does not need to evaluate a child with a disability who
graduates with a regular diploma. In addition, as noted in the Analysis
of Comments and Changes section for subpart B, we have clarified in
Sec. 300.101(a)(3)(iv) that a regular diploma does not include
alternate degrees, such as a general educational development (GED)
credential. We do not believe that any further clarification with
respect to the definition of ``regular diploma'' is necessary.
Changes: None.
Determination of Eligibility (Sec. 300.306)
Comment: One commenter recommended that the regulations require
public agencies to provide parents with copies of all evaluations at no
cost. However, another commenter stated that evaluations are often
lengthy and requested clarification as to whether public agencies must
provide copies of evaluations to parents at no cost.
Discussion: Section 300.306(a)(2), consistent with section
614(b)(4)(B) of the Act, requires that a copy of the evaluation report
and the documentation of determination of eligibility be given to the
parent. We have added language to Sec. 300.306(a)(2) to clarify that
the public agency must provide these copies at no cost to the parent.
With regard to providing parents with copies of all evaluations,
Sec. 300.501(a), consistent with section 615(b)(1) of the Act, affords
parents an opportunity to inspect and review all education records with
respect to the identification, evaluation, and educational placement of
the child, and the provision of a FAPE to the child. Specific
procedures for access to records are contained in the confidentiality
provisions in Sec. Sec. 300.610 through 300.627.
Section 300.613 requires a public agency to permit a parent to
inspect and review any education records relating to their child that
are collected, maintained, or used by the agency under the Act. The
right to inspect and review records includes the right to a response
from the agency to reasonable requests for explanations and
interpretations of the records; the right to request that the agency
provide copies of the records containing the information if failure to
provide those copies would effectively prevent the parent from
exercising the right to inspect and review the records; and the right
to have a representative of the parent inspect and review the records.
To the extent that the commenters may have been concerned about free
copies of evaluation documents that would not be provided under the
above regulations, we decline to regulate further, as we believe that
the cited provisions adequately balance the interests of the parents
for free copies and the public agencies in controlling costs.
Changes: We have added language to Sec. 300.306(a)(2) to clarify
that the evaluation report and the documentation of determination of
eligibility must be provided at no cost to the parent.
Comment: One commenter recommended that parents receive evaluation
reports prior to an IEP Team meeting because the reports may have
information that parents need to participate in making decisions about
the IEP. The commenter stated that, if parents receive reports at
meetings, rather than before the meetings, they cannot be active
participants. Another commenter stated that parents should be provided
with copies of documents related to the determination of eligibility at
least five days prior to the eligibility determination meeting.
Discussion: The Act does not establish a timeline for providing a
copy of the evaluation report or the documentation of determination of
eligibility to the parents and we do not believe that a specific
timeline should be included in the regulations because this is a matter
that is best left to State and local discretion. It is, however,
important to ensure that parents have the information they need to
participate meaningfully in IEP Team meetings, which may include
reviewing their child's records. Section 300.613(a) requires a public
agency to comply with a parent request to inspect and review existing
education records, including an evaluation report, without unnecessary
delay and before any meeting regarding an IEP, and in no case more than
45 days after the request has been made. This includes the right to a
response from the public agency to reasonable requests for explanations
and interpretations of records, consistent with Sec. 300.613(b)(1).
While it would be appropriate for parents to review documents
related to the determination of eligibility prior to the eligibility
determination, there is no requirement that eligibility be determined
at an IEP Team meeting and it would not be appropriate for a public
agency to provide documentation of the determination of eligibility
prior to discussing a child's eligibility for special education and
related services with the parent. Section 300.306(a)(1) and section
614(b)(4)(A) of the Act require that a group of qualified professionals
and the parent determine whether the child is a child with a
disability. Therefore, providing documentation of the eligibility
determination to a parent prior to a discussion with the parent
regarding the child's eligibility would indicate that the public agency
made its determination without including the parent and possibly,
qualified professionals, in the decision.
Changes: None.
Special Rule for Eligibility Determination (Sec. 300.306(b))
Comment: A number of commenters recommended other factors that
should be ruled out before a child is determined to be a child with a
disability. Many commenters stated that a child should not be
determined to be a child with a disability if the determinant factor is
lack of instruction in English language development or lack of access
to State content standards. A
[[Page 46646]]
few commenters expressed concern regarding subjective judgments about
the definition of ``appropriate instruction.'' One commenter stated
that determining the quality of reading instruction that children
received in the past might be difficult, if not impossible, especially
when children are referred for an evaluation after they enter middle
school or are highly mobile.
Discussion: We agree that a child should not be determined to be a
child with a disability if the determinant factor is lack of access to
State content standards, and we believe this is implicit in section
614(b)(5) of the Act, which states that a child must not be determined
to be a child with a disability if the determinant factor is lack of
appropriate instruction in reading (including the essential components
of reading instruction, as defined in the ESEA) or lack of instruction
in math.
During the Department's internal review of these regulations, we
noted that, while Sec. 300.306(b)(1)(i) refers to lack of
``appropriate'' instruction in reading, there is no similar qualifier
for math. We believe it is equally important that a child not be
determined to be a child with a disability if the determinant factor is
the lack of ``appropriate'' instruction in math. Therefore, we will
revise Sec. 300.306(b)(1)(ii) to make this clear.
We are unclear what the commenter means by lack of instruction in
English language development. However, if a child's low achievement is
a result of limited English proficiency or lack of access to
instruction in reading, the child must not be determined to be a child
with a disability, consistent with section 614(b)(5) of the Act.
Whether a child has received ``appropriate instruction'' is
appropriately left to State and local officials to determine. While
information regarding the quality of instruction a child received in
the past may be helpful in determining whether a child is eligible for
special education services, it is not essential. Schools, however, must
ensure that the determinant factor in deciding that a child is a child
with a disability is not a lack of appropriate instruction in reading
and math.
Changes: We have added ``appropriate'' in Sec. 300.306(b)(1)(ii)
to refer to a ``lack of appropriate instruction in math.''
Comment: Some commenters requested that we include in the
regulations the essential components of reading instruction defined in
the ESEA.
Discussion: For reasons set forth elsewhere in this preamble, we
are not adding definitions to these regulations from statutes other
than the Act. However, the definition of the essential components of
reading instruction from section 1208(3) of the ESEA is included here
for reference.
Essential Components of Reading Instruction--The term ``essential
components of reading instruction'' means explicit and systematic
instruction in--
(A) Phonemic awareness;
(B) Phonics;
(C) Vocabulary development;
(D) Reading fluency, including oral reading skills; and
(E) Reading comprehension strategies.
Changes: None.
Procedures for Determining Eligibility and Educational Need (Proposed
Procedures for Determining Eligibility and Placement) (Sec.
300.306(c))
Comment: None.
Discussion: During the review of these regulations, we noted that
section 614(b)(4) of the Act refers to procedures for determining
eligibility and ``educational need,'' rather than procedures for
determining eligibility and ``placement,'' as in the heading for
proposed Sec. 300.306(c). Therefore, we will change the heading in
Sec. 300.306(c) to be consistent with section 614(b)(4) of the Act.
Changes: We have replaced ``placement'' with ``educational need''
in the heading to Sec. 300.306(c), consistent with section 614(b)(4)
of the Act.
Additional Procedures for Identifying Children With Specific Learning
Disabilities
Specific Learning Disabilities (Sec. 300.307)
Comment: Numerous commenters supported proposed Sec.
300.307(a)(1), which allowed States to prohibit LEAs from using a
severe discrepancy between IQ and achievement (discrepancy models) to
determine eligibility under the specific learning disability (SLD)
category. However, many commenters supported the use of discrepancy
models and requested that the regulations allow discrepancy models to
continue to be used. Numerous commenters stated that Sec.
300.307(a)(1) exceeds statutory authority and that LEAs should be
permitted to use discrepancy models. Many commenters cited Conf. Rpt.
108-779 and stated that Congress did not intend to prohibit LEAs from
using discrepancy models.
Discussion: The Department agrees that proposed Sec. 300.307(a)(1)
should be removed. We believe this will improve the clarity of the
regulations and make it easier for parents and professionals to
understand. With respect to permitting LEAs to use discrepancy models,
even with the removal of Sec. 300.307(a)(1), States are responsible
for developing criteria to determine whether a child is a child with a
disability, as defined in Sec. 300.8 and section 602(3) of the Act,
including whether a particular child meets the criteria for having an
SLD. Under section 614(b)(6) of the Act, States are free to prohibit
the use of a discrepancy model. States, including States that did not
use a discrepancy model prior to the Act, are not required to develop
criteria that permit the use of a discrepancy model.
Changes: We have removed Sec. 300.307(a)(1) and redesignated the
subsequent provisions in Sec. 300.307.
Comment: Many commenters stated that response to intervention (RTI)
should be considered one component of the evaluation process and not
the sole component. Another commenter stated that neither a discrepancy
model nor an RTI model alone can correctly identify children with SLD
and that other data are needed, such as informal and formal
assessments, histories, and observations. One commenter stated that all
relevant and available evaluation data, such as the nature and type of
evaluation, evaluator qualifications, and outcome data should be
considered. One commenter recommended that RTI be tied to the general
evaluation procedures. Another commenter recommended referencing the
evaluation procedures in Sec. 300.309 to clarify that RTI must be used
as one component of the evaluation process to determine eligibility for
special education and related services. Several commenters stated that
relying solely on an RTI model would result in larger numbers of
children being identified with an SLD.
Discussion: Consistent with Sec. 300.304(b) and section 614(b)(2)
of the Act, the evaluation of a child suspected of having a disability,
including an SLD, must include a variety of assessment tools and
strategies and cannot rely on any single procedure as the sole
criterion for determining eligibility for special education and related
services. This requirement applies to all children suspected of having
a disability, including those suspected of having an SLD.
To simplify new Sec. 300.307(a)(2) (proposed Sec. 300.307(a)(3))
and remove unnecessary repetition, we will: (a) Remove the phrase ``as
part of the
[[Page 46647]]
evaluation procedures described in Sec. 300.304;'' and (b) replace
``process that determines if the child responds to scientific,
research-based intervention'' with ``process based on the child's
response to scientific, research-based intervention.'' Section
300.311(a)(7) will also be revised, consistent with this language.
Changes: We have revised new Sec. 300.307(a)(2) (proposed Sec.
300.307(a)(3)) and Sec. 300.311(a)(7) for clarity.
Comment: Several commenters recommended changing new Sec.
300.307(a)(2) (proposed Sec. 300.307(a)(3)) to require that State
criteria ``may'' rather than ``must'' permit a process that determines
if a child responds to research-based intervention in order to be
consistent with section 614(b)(6)(B) of the Act.
Discussion: Making the requested change to new Sec. 300.307(a)(2)
(proposed Sec. 300.307(a)(3)) would be inconsistent with the Act.
Section 614(b)(6)(B) of the Act gives LEAs the option of using a
process that determines if a child responds to research-based
interventions.
Changes: None.
Comment: Several commenters recommended that the regulations
include a statement that discrepancy models have been discredited and
that there is no evidence that they can be applied in a valid and
reliable manner. Several commenters recommended that the Department
urge States, at least through guidance, to eliminate provisions under
State laws that permit the use of discrepancy models.
Discussion: We do not believe it is appropriate to add language in
the regulations discouraging the use of discrepancy models to identify
children with SLD. We removed current Sec. 300.541(a)(2), which
required States to use a discrepancy model to determine whether a child
has an SLD, because section 614(b)(6) of the Act now specifies that an
LEA shall not be required to consider a severe discrepancy in
determining whether a child has an SLD. New Sec. 300.307(a)(2)
(proposed Sec. 300.307(a)(3)) requires States to permit the use of a
process that examines whether the child responds to scientific,
research-based interventions as part of the information reviewed to
determine whether a child has an SLD. The regulations reflect the
Department's position on the identification of children with SLD and
our support for models that focus on assessments that are related to
instruction and promote intervention for identified children.
Changes: None.
Comment: One commenter recommended that any guidance the Department
issues on RTI models should emphasize that RTI represents a shift in
how children are identified for special education services and not just
an additional task that special education teachers must do.
Discussion: Consensus reports and empirical syntheses indicate a
need for major changes in the approach to identifying children with
SLD. Models that incorporate RTI represent a shift in special education
toward goals of better achievement and improved behavioral outcomes for
children with SLD because the children who are identified under such
models are most likely to require special education and related
services. We will consider addressing this issue in future guidance.
Changes: None.
Comment: Many commenters stated that the elimination of discrepancy
models would result in an inability to identify children with SLD who
are gifted. One commenter stated that a scatter of scores should be
used to identify children with SLD who are gifted.
Discussion: Discrepancy models are not essential for identifying
children with SLD who are gifted. However, the regulations clearly
allow discrepancies in achievement domains, typical of children with
SLD who are gifted, to be used to identify children with SLD.
Changes: None.
Comment: Many commenters opposed the use of RTI models to determine
whether a child has an SLD, stating that there is a lack of scientific
evidence demonstrating that RTI models correctly identify children with
SLD. One commenter stated that RTI is a subjective method of
determining whether treatment is effective and is not a treatment
itself. A few commenters requested additional research demonstrating
the efficacy of the wide-scale use of RTI models. Some commenters
stated that research on the use of RTI models has been conducted only
in the area of reading in the primary grades and pointed to the lack of
scientific data on achievement gains or long-term success. One
commenter stated that there is no evidence that RTI is effective for
non-native speakers of English and minority populations. Another
commenter stated that RTI would fail to identify young children with
SLD. One commenter stated that when a child fails to respond to an
intervention, it is unclear why the child failed (e.g., inappropriate
intervention, ineffective teaching, unreasonable expectations). One
commenter stated that longitudinal data are needed to determine if
children who succeed in an RTI process later become eligible under the
category of SLD based on reading fluency and comprehension
difficulties, or difficulties in other academic areas, such as
mathematics problem-solving or written expression.
Discussion: The Act requires that LEAs be permitted to use a
process that determines if a child responds to research-based
interventions. Further, there is an evidence base to support the use of
RTI models to identify children with SLD on a wide scale, including
young children and children from minority backgrounds. These include
several large-scale implementations in Iowa (the Heartland model;
Tilly, 2002); the Minneapolis public schools (Marston, 2003);
applications of the Screening to Enhance Equitable Placement (STEEP)
model in Mississippi, Louisiana, and Arizona (VanDerHeyden, Witt, &
Gilbertson, in press); and other examples (NASDE, 2005).\1\ While it is
true that much of the research on RTI models has been conducted in the
area of reading, 80 to 90 percent of children with SLD experience
reading problems. The implementation of RTI in practice, however, has
included other domains. RTI is only one component of the process to
identify children in need of special education and related services.
Determining why a child has not responded to research-based
interventions requires a comprehensive evaluation.
---------------------------------------------------------------------------
\1\ Tilly III, W. D. (2002). School psychology as a problem
solving enterprise. In A. Thomas & J. Grimes (Eds.), Best Practices
in School Psychology IV. Washington D.C.: National Association of
School Psychologists; VanDerHeyden, A.M, Witt, J.C, & Gilbertson, D.
(in press). Effect of a problem solving intervention on the accurate
identification of children. Journal of School Psychology; Marston,
D., Muyskens, P., Lau, M., & Canter, A. (2003). Problem-solving
model for decision making with high incidence disabilities: The
Minneapolis experience. Learning Disabilities Research and Practice,
18, 187-200; Gresham, F., VanDerHeyden, A.M, & Witt, J.C. (in
press). Response to intervention in the identification of learning
disabilities: Empirical support and future challenges. School
Psychology Review; National Association of State Directors of
Special Education (2005). Response to intervention: policy
considerations and implementations. Alexandria VA: Author.
---------------------------------------------------------------------------
Changes: None.
Comment: One commenter expressed concern about how LEAs will
conduct evaluations for children suspected of having an SLD who attend
private schools because requiring an RTI process could become entangled
with the private school's instructional practices. The commenter
recommended clarifying that child find does not require an LEA to use
RTI to
[[Page 46648]]
identify children with SLD who are attending private schools.
Discussion: An RTI process does not replace the need for a
comprehensive evaluation. A public agency must use a variety of data
gathering tools and strategies even if an RTI process is used. The
results of an RTI process may be one component of the information
reviewed as part of the evaluation procedures required under Sec. Sec.
300.304 and 300.305. As required in Sec. 300.304(b), consistent with
section 614(b)(2) of the Act, an evaluation must include a variety of
assessment tools and strategies and cannot rely on any single procedure
as the sole criterion for determining eligibility for special education
and related services.
It is up to each State to develop criteria to determine whether a
child has a disability, including whether a particular child has an
SLD. In developing their criteria, States may wish to consider how the
criteria will be implemented with a child for whom systematic data on
the child's response to appropriate instruction is not available.
However, many private schools collect assessment data that would permit
a determination of how well a child responds to appropriate
instruction. The group making the eligibility determination for a
private school child for whom data on the child's response to
appropriate instruction are not available may need to rely on other
information to make their determination, or identify what additional
data are needed to determine whether the child is a child with a
disability. However, under Sec. 300.306(b), a public agency may not
identify any public or private school child as a child with a
disability if the determinant factor is lack of appropriate instruction
in reading or math.
Changes: None.
Comment: One commenter stated that adoption of new procedures for
evaluating children suspected of having an SLD should not penalize or
declassify children who under prior procedures were found to have an
SLD. The commenter recommended using the requirements in Sec. 300.305,
rather than data from a child's response to a scientific, research-
based intervention process, to consider whether a child continues to
have an SLD.
Discussion: An RTI process does not replace the need for a
comprehensive evaluation, and a child's eligibility for special
education services cannot be changed solely on the basis of data from
an RTI process. Consistent with Sec. 300.303 and section 614(a)(2) of
the Act, a child with a disability must be reevaluated if the public
agency determines that the educational or related services needs of the
child warrant a reevaluation or if the child's parent or teacher
requests a reevaluation. A reevaluation must occur no more than once a
year, unless the parent and the public agency agree otherwise, and at
least once every three years, unless the parent and the public agency
agree that a reevaluation is unnecessary, to determine whether the
child continues to have a disability and to determine the educational
needs of the child. Reevaluations must be conducted in accordance with
Sec. Sec. 300.304 through 300.311. In addition, as noted in Sec.
300.305(e)(1), except for children at the end of their secondary school
career, a reevaluation must be done before determining that a child is
no longer a child with a disability. In conducting a reevaluation, as
noted in Sec. 300.305, consistent with section 614(c) of the Act, the
IEP Team and other qualified professionals must review existing
evaluation data on the child including evaluations provided by the
parents of the child; current classroom-based, local, or State
assessments and classroom-based observations; and observations by
teachers and related services providers.
The results of an RTI process may be one component of the
information reviewed as part of the reevaluation process. It is up to
each State to develop criteria to determine whether a child continues
to have a disability, including whether a particular child has an SLD.
States that change their eligibility criteria for SLD may want to
carefully consider the reevaluation of children found eligible for
special education services using prior procedures. States should
consider the effect of exiting a child from special education who has
received special education and related services for many years and how
the removal of such supports will affect the child's educational
progress, particularly for a child who is in the final year(s) of high
school. Obviously, the group should consider whether the child's
instruction and overall special education program have been appropriate
as part of this process. If the special education instruction has been
appropriate and the child has not been able to exit special education,
this would be strong evidence that the child's eligibility needs to be
maintained.
Changes: None.
Alternative Research-Based Procedures (New Sec. 300.307(a)(3))
(Proposed Sec. 300.307(a)(4))
Comment: Many commenters expressed support for allowing the use of
alternative research-based procedures to determine whether a child has
an SLD. However, a few commenters stated that the use of alternative
research-based procedures should be removed because there is no
indication that these procedures will assist in identifying a child
with an SLD and because the Act does not use this term.
Discussion: New Sec. 300.307(a)(3) (proposed Sec. 300.307(a)(4))
recognizes that there are alternative models to identify children with
SLD that are based on sound scientific research and gives States
flexibility to use these models. For example, a State could choose to
identify children based on absolute low achievement and consideration
of exclusionary factors as one criterion for eligibility. Other
alternatives might combine features of different models for
identification. We believe the evaluation procedures in section
614(b)(2) and (b)(3) of the Act give the Department the flexibility to
allow States to use alternative, research-based procedures for
determining whether a child has an SLD and is eligible for special
education and related services.
Changes: None.
Comment: One commenter stated that alternative research-based
procedures are not based on scientific research and should therefore be
removed.
Discussion: The Department does not support the use of
identification procedures that are not based on scientific research.
Models or procedures that claim to assist in identifying a child with
an SLD, but which are not based on sound scientific research, are not
appropriate and should not be adopted by LEAs or States.
Changes: None.
Comment: A few commenters stated that the meaning of alternative
research-based procedures is unclear and should be defined. One
commenter stated that there would be inappropriate interventions and
procedures without further clarification as to the meaning of
alternative research-based procedures.
Discussion: As noted in the Analysis of Comments and Changes
section for subpart A, we have added the definition of scientifically
based research from section 9101(37) of the ESEA to the definitions
section of these regulations. This definition is the most appropriate
definition to include in these regulations, given the importance
Congress placed on aligning the Act with the ESEA. The Department does
not intend to dictate how extensive the research must be or who, within
an LEA or State, should determine that the research is of high quality.
We believe that this is a matter best left to State and
[[Page 46649]]
local officials because determining the presence of an appropriate
instructional process is part of the State-adopted criteria. This
addition should provide the clarity requested by the commenters.
Changes: We have added a definition of scientifically based
research to Sec. 300.35, giving the term the definition in section
9101(37) of the ESEA.
Consistency With State Criteria (Sec. 300.307(b))
Comment: Several commenters expressed concern about allowing States
to decide on the approach to determining whether a child has an SLD,
and requested the Department develop criteria to be used across the
nation. However, numerous commenters supported the development of State
criteria and requiring public agencies to use the State criteria to
determine whether a child has an SLD. Many commenters stated that this
requirement is necessary to prevent inconsistent eligibility
requirements among LEAs in a State. Other commenters stated that the
requirement exceeds statutory authority and that LEAs should be allowed
to make decisions about the criteria and methods to identify children
with SLD.
Discussion: The Department believes that eligibility criteria must
be consistent across a State to avoid confusion among parents and
school district personnel. The Department also believes that requiring
LEAs to use State criteria for identifying children with disabilities
is consistent with the State's responsibility under section 612(a)(3)
of the Act to locate, identify, and evaluate all eligible children with
disabilities in the State. We believe this provides the Department with
the authority to require a public agency to use State criteria in
determining whether a child has an SLD, consistent with Sec. Sec.
300.307 through 300.311.
Changes: None.
Comment: A few commenters requested requiring States to adopt and
implement only one model to determine whether a child has an SLD.
However, several commenters requested that States and LEAs have the
flexibility to use more than one model. One commenter noted that States
need flexibility to determine eligibility criteria until there is
greater understanding of the effectiveness of evidence-based protocols
in identifying children with SLD.
Discussion: There is nothing in the Act that would require a State
to use one model of identification to identify a child with an SLD. We
do not believe the regulations should include such a requirement,
because section 614(b)(6) of the Act indicates that some flexibility in
the selection of models of identification by LEAs can be appropriate,
if permitted by the State.
Changes: None.
Comment: One commenter recommended that the Department require
States to develop a plan to implement Statewide eligibility criteria
that includes dissemination of research-based models, collecting data
on the use of such models, providing professional development on the
State's criteria, and implementing appropriate services and
instruction.
Discussion: We agree that it could be helpful for States to develop
a plan to implement any new SLD criteria, as recommended by the
commenter. However, we do not believe States should be required to
adopt such a plan, as this is a matter that is best left to individual
States to decide.
Changes: None.
Group Members (Sec. 300.308)
Comment: Several commenters requested an explanation of the use of
``group members'' rather than ``team members'' to describe the group
that determines whether a child suspected of having an SLD is a child
with a disability. One commenter stated that the eligibility
determination is an IEP Team function and, therefore, using the term
``group members'' is inappropriate. One commenter stated that Sec.
300.308 is confusing because the group seems to be the same as the IEP
Team.
Discussion: The change from ``team members'' to ``group members''
was made in the 1999 regulations to distinguish this group from the IEP
Team, because the team of qualified professionals and the parent in
Sec. 300.306(a)(1) that makes the eligibility determination does not
necessarily have the same members as an IEP Team. In some States, this
group of professionals may have the same individuals as the IEP Team,
but in other States, this is not the case. We inadvertently referred to
``team members'' in 300.309(a)(2)(ii) and, therefore, will change this
to ``group.''
Changes: We have changed ``team members'' to ``group'' in Sec.
300.309(a)(2)(ii) to be consistent with Sec. 300.306(a)(1).
Comment: Several commenters stated that the requirements for the
qualifications of the group members in proposed Sec. 300.308(a) are
unnecessary and should be removed because they are not included in the
Act, are overly prescriptive, and add another set of procedural
requirements. On the other hand, a number of commenters recommended
additional or different qualifications that should be required of the
group members in Sec. 300.308. Several commenters recommended that the
group members be qualified to conduct assessments in the area of
``cognition'' rather than ``intellectual development'' to ensure that
specific cognitive abilities are assessed, rather than global
intellectual abilities.
Several commenters recommended that proposed Sec. 300.308(a)(2),
requiring group members to apply ``critical analysis'' to the data, be
changed to require group members to apply ``clinical'' analysis to the
data. One commenter stated that clinical analysis should be defined and
suggested a definition that includes professional judgment informed by
empirical research, training, and experience, and guided by
interpretation of patterns in evaluation findings from a number of
sources (e.g., test scores; interviews; work samples; observational
data; and information from parents, school personnel, and other related
services providers).
A few commenters recommended requiring evaluations to be completed
by certified speech-language pathologists and school psychologists to
ensure that qualified professionals conduct the assessments. One
commenter recommended that the examples of the areas for diagnostic
assessments be preceded by ``such as'' to avoid a misinterpretation
that a speech-language pathologist, for example, is mandated to
participate in every SLD determination.
Several commenters agreed with the professional competencies for
the group members described in Sec. 300.308(a). However, one commenter
stated that ``collectively qualified'' is too broad a term and should
be more narrowly defined. Another commenter stated that there is no way
to ensure that the group members possess the necessary expertise unless
there is a mechanism to determine whether the group members have the
specified competencies in proposed Sec. 300.308(a).
One commenter stated that, although professionals from more than
one discipline may be qualified to administer certain assessments, they
do not bring the same expertise to the process. One commenter asked if
a special education teacher, a regular education teacher, and parent
were all that would be necessary if they collectively met the
competency requirements.
Several commenters stated that the list of professionals in
proposed Sec. 300.308(b) for the eligibility group should be removed
and decisions about group members left to schools and
[[Page 46650]]
districts. Other commenters stated that the requirements for the
eligibility group should be the same as those for the group that
determines the eligibility of children suspected of all other
disabilities.
Many commenters recommended that additional or different
professionals should be included in the group. Numerous commenters
recommended including speech-language pathologists in the group because
of their expertise in reading and conducting individual diagnostic
assessments in the areas of speech and language.
A few commenters stated that a school psychologist should be a
required member of the group, rather than listed as ``if appropriate.''
One of these commenters stated that, even if school psychologists are
no longer required to administer assessments to determine whether there
is a discrepancy between the child's achievement and ability, school
psychologists conduct assessments related to cognitive functioning,
behavior, and other issues that may affect a child's learning.
Numerous commenters recommended requiring the special education
teacher who is part of the eligibility group to have expertise in the
area of SLD. However, one commenter stated that it is unnecessary for a
special education teacher to be part of the group because the teacher
would not have any instructional experience with the yet-to-be
identified child and nothing in the Act requires special education
teachers to possess any diagnostic expertise in the area of SLD.
One commenter recommended that the group include a teacher with
experience in teaching children who are failing or at-risk for failing,
in addition to a general education and special education teacher.
Several commenters recommended adding a reading specialist as a
required member. A few commenters recommended including a social worker
as a required member, stating that it is important that one of the
members examine the child's home and community environment to rule out
environmental and economic factors as a primary source of the child's
learning difficulties. Another commenter recommended adding a guidance
counselor as a required member. One commenter recommended including a
school nurse and stated that a school nurse can contribute information
about educationally relevant medical findings.
One commenter stated that a reading teacher and an educational
therapist should always be included in the group. A few commenters were
not familiar with the role of an educational therapist and requested a
definition or elimination of the term from the list of ``other
professionals.'' One commenter stated that two of the three
professionals listed as ``other professionals'' (school psychologist,
reading teacher, educational therapist) are not credentialed and
questioned why they were included in the group.
Discussion: The Department has considered the diversity of comments
received and, given the lack of consensus about which individuals
should be included in the group that makes eligibility determinations
for children suspected of having an SLD, believes that the requirements
in current Sec. 300.540 should be retained. Current Sec. 300.540
states that the eligibility group for children suspected of having SLD
must include the child's parents and a team of qualified professionals,
which must include the child's regular teacher (or if the child does
not have a regular teacher, a regular classroom teacher qualified to
teach a child of his or her age) or for a child of less than school
age, an individual qualified by the SEA to teach a child of his or her
age; and at least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist or remedial reading teacher. We believe this
allows decisions about the specific qualifications of the members to be
made at the local level, so that the composition of the group may vary
depending on the nature of the child's suspected disability, the
expertise of local staff, and other relevant factors. For example, for
a child suspected of having an SLD in the area of reading, it might be
important to include a reading specialist as part of the eligibility
group. However, for a child suspected of having an SLD in the area of
listening comprehension, it might be appropriate for the group to
include a speech-language pathologist with expertise in auditory
processing disorders. Current Sec. 300.540 provides flexibility for
schools and districts, and ensures that the group includes individuals
with the knowledge and skills necessary to interpret the evaluation
data and make an informed determination as to whether the child is a
child with an SLD, and the educational needs of the child.
Changes: Section 300.308 has been changed to include the
requirements from current Sec. 300.540.
Determining the Existence of a Specific Learning Disability (Sec.
300.309)
Comment: One commenter stated that there is no authority in the Act
for the SLD eligibility requirements outlined in Sec. 300.309.
Discussion: We agree that the statutory language is broad and does
not include the specific requirements to determine whether a child
suspected of having an SLD is a child with a disability. The purpose of
these regulations, however, is to provide details to assist States in
the appropriate implementation of the Act. We believe the requirements
in Sec. 300.309 are necessary to ensure that States have the details
necessary to implement the Act.
Changes: None.
Comment: One commenter stated that RTI was Congress' preference for
determining eligibility under SLD, and therefore, the criteria for RTI
should be the first paragraph of Sec. 300.309 (Determining the
existence of a specific learning disability).
Discussion: The Department believes that the criteria in Sec.
300.309 are presented in a logical order and are consistent with the
Act.
Changes: None.
Comment: One commenter stated that a discrepancy between
intellectual ability and achievement can differentiate between children
with disabilities and children with general low achievement, and noted
that the problems with discrepancy models have been in implementation,
rather than in the concept itself for identifying children with SLD.
Discussion: There is a substantial research base summarized in
several recent consensus reports (Donovan & Cross, 2002; Bradley et
al., 2003) and meta-analyses (Hoskyn & Swanson, 2000; Steubing et al.,
2002) that does not support the hypothesis that a discrepancy model by
itself can differentiate children with disabilities and children with
general low achievement.\2\ Therefore, we disagree with the comment
because such a differentiation is not possible with any single
criterion, including RTI.
---------------------------------------------------------------------------
\2\ Donovan, M.S., & Cross, C.T. (2002). Minority students in
special and gifted education. Washington, DC: National Academy
Press; Bradley, L., Danielson, & Hallahan, D.P. (Eds.).
Identification of learning disabilities: Research to practice.
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L (2000). Cognitive
processing of low achievers and children with reading disabilities:
A selective meta-analytic review of the published literature. The
School Psychology Review, 29, 102-119; Steubing, K.K., Fletcher,
J.M., LeDoux, J.M., Lyon, G.R., Shaywitz, S.E., & Shoywitz B.A.
(2002). Validity of IQ-discrepancy, classifications of reading
disabilities: A meta-analysis. American Educational Research
Journal, 39, 469-518.
---------------------------------------------------------------------------
Changes: None.
Comment: One commenter requested retaining the language in current
Sec. 300.541, regarding the use of discrepancy models.
[[Page 46651]]
Discussion: Section 614(b)(6) of the Act prohibits States from
requiring a discrepancy approach to identify children with SLD. Current
Sec. 300.541 requires a discrepancy determination and is, therefore,
inconsistent with the Act.
Changes: None.
Comment: One commenter requested that the eligibility group be
allowed to consider the results from standardized, individualized
testing (not just criterion-based testing or functional assessments) in
the eligibility determination.
Discussion: Nothing in the Act or these regulations would preclude
the eligibility group from considering results from standardized tests
when making eligibility determinations.
Changes: None.
Comment: Many commenters recommended adding the concept of
psychological processing disorders to the eligibility criteria in Sec.
300.309. Several commenters noted that the criteria in Sec. 300.309 do
not fully address the definition of SLD in Sec. 300.8(c)(10), which
includes a processing disorder in one or more of the basic
psychological processes. Several commenters stated that, without
requiring documentation of a basic psychological processing disorder,
the number of children identified with SLD will significantly increase
and the use of assessment tools that have the potential to
significantly guide instruction will decrease. Several commenters
stated that failure to consider individual differences in cognitive
processing skills reverses more than 20 years of progress in cognitive
psychology and developmental neuroscience. One commenter stated that
identifying a basic psychological processing disorder would help ensure
that children identified with an SLD are not simply victims of poor
instruction. One commenter stated that the shift away from requiring
diagnostic assessments in the area of cognition would make it
conceptually impossible to document that a child has a disorder in one
or more of the basic psychological processes, as required in the
definition of SLD in Sec. 300.8(c)(10).
Discussion: The Department does not believe that an assessment of
psychological or cognitive processing should be required in determining
whether a child has an SLD. There is no current evidence that such
assessments are necessary or sufficient for identifying SLD. Further,
in many cases, these assessments have not been used to make appropriate
intervention decisions. However, Sec. 300.309(a)(2)(ii) permits, but
does not require, consideration of a pattern of strengths or
weaknesses, or both, relative to intellectual development, if the
evaluation group considers that information relevant to an
identification of SLD. In many cases, though, assessments of cognitive
processes simply add to the testing burden and do not contribute to
interventions. As summarized in the research consensus from the OSEP
Learning Disability Summit (Bradley, Danielson, and Hallahan, 2002),
``Although processing deficits have been linked to some SLD (e.g.,
phonological processing and reading), direct links with other processes
have not been established. Currently, available methods for measuring
many processing difficulties are inadequate. Therefore, systematically
measuring processing difficulties and their link to treatment is not
yet feasible * * *. Processing deficits should be eliminated from the
criteria for classification * * *.'' (p. 797).\3\ Concerns about the
absence of evidence for relations of cognitive discrepancy and SLD for
identification go back to Bijou (1942; \4\ see Kavale, 2002) \5\.
Cronbach (1957) \6\ characterized the search for aptitude by treatment
interactions as a ``hall of mirrors,'' a situation that has not
improved over the past few years as different approaches to assessment
of cognitive processes have emerged (Fletcher et al., 2005; Reschly &
Tilly, 1999) \7\.
---------------------------------------------------------------------------
\3\ Bradley, R., Danielson, L., & Hallahan, D.P. (Eds.). (2002).
Identification of learning disabilities: Research to practice.
Mahwah, NJ: Erlbaum.
\4\ Bijou, S.W. (1942). The psychometric pattern approach as an
aid to clinical assessment--a review. American Journal of Mental
Deficiency, 46, 354-362.
\5\ Kavale, K. (2002). Discrepancy models in the identification
of learning disabilities. In R. Bradley, L. Danielson, & D.P.
Hallahan (Eds.). Identification of learning disabilities: Research
to practice (pp. 370-371). Mahwah, NJ: Erlbaum.
\6\ Cronbach, L.J. (1957). The two disciplines of scientific
psychology. American Psychologist, 12, 671-684.
\7\ Fletcher, J.M., Denton, C., & Francis, D.J. (2005). Validity
of alternative approaches for the identification of LD:
Operationalizing unexpected underachievement. Journal of Learning
Disabilities, 38, 545-552; Reschly, D.J., & Tilly, W.D. (1999).
Reform trends and system design alternatives. In D.J. Reschly, W.D.
Tilly, III, and J.P. Grimes (Eds.). Special education in transition:
Functional assessment and noncategorical programming. Longmont, CO:
Sopris West.
---------------------------------------------------------------------------
Changes: None.
Comment: Several commenters requested that the regulations include
a definition of ``intellectual development.''
Discussion: We do not believe it is necessary to define
``intellectual development'' in these regulations. Intellectual
development is included in Sec. 300.309(a)(2)(ii) as one of three
standards of comparison, along with age and State-approved grade-level
standards. The reference to ``intellectual development'' in this
provision means that the child exhibits a pattern on strengths and
weaknesses in performance relative to a standard of intellectual
development such as commonly measured by IQ tests. Use of the term is
consistent with the discretion provided in the Act in allowing the
continued use of discrepancy models.
Changes: None.
Comment: Several commenters stated that intra-individual
differences, particularly in cognitive functions, are essential to
identifying a child with an SLD and should be included in the
eligibility criteria in Sec. 300.309.
Discussion: As indicated above, an assessment of intra-individual
differences in cognitive functions does not contribute to
identification and intervention decisions for children suspected of
having an SLD. The regulations, however, allow for the assessment of
intra-individual differences in achievement as part of an
identification model for SLD. The regulations also allow for the
assessment of discrepancies in intellectual development and
achievement.
Changes: None.
Comment: One commenter requested guidance on how to determine
whether a child was provided with learning experiences appropriate for
the child's age, as required in Sec. 300.309(a)(1).
Discussion: While such guidance might be helpful, we believe SEAs
and LEAs are in the best position to provide guidance on age-
appropriate learning experiences.
Changes: None.
Comment: Several commenters expressed support for the requirements
in Sec. 300.309(a)(1) and stated that the first element of determining
eligibility for an SLD is a finding that the child does not achieve
commensurate with the child's age in one or more of the eight areas
when provided with learning experiences appropriate to the child's age.
However, several commenters requested requiring that eligibility
determinations for an SLD include evidence that the child's achievement
level is not commensurate with the child's age and ability (emphasis
added). One commenter indicated that knowledge of a child's ability
level is important to ensure that a determination is not based on
deficits in areas not related to cognitive processing (e.g., lack of
opportunity to learn, social or emotional disturbances), and to prevent
misdiagnosis of children with mental
[[Page 46652]]
retardation and SLD. One commenter stated that Sec. 300.309(a)(1)
would allow any child who failed to achieve commensurate with his or
her age to be considered to have an SLD, and this will increase the
number of children referred for special education and related services.
Several commenters expressed concern that the eligibility
determination for SLD is based on whether the child achieves
commensurate with his or her age because current practice uses
normative data that are based on grade level. These commenters
recommended clarifying that grade level or classmate performance should
also be considered.
Discussion: The first element in identifying a child with SLD
should be a child's mastery of grade-level content appropriate for the
child's age or in relation to State-approved grade-level standards, not
abilities. This emphasis is consistent with the focus in the ESEA on
the attainment of State-approved grade-level standards for all
children. State-approved standards are not expressed as ``norms'' but
represent benchmarks for all children at each grade level. The
performance of classmates and peers is not an appropriate standard if
most children in a class or school are not meeting State-approved
standards. Furthermore, using grade-based normative data to make this
determination is generally not appropriate for children who have not
been permitted to progress to the next academic grade or are otherwise
older than their peers. Such a practice may give the illusion of
average rates of learning when the child's rate of learning has been
below average, resulting in retention. A focus on expectations relative
to abilities or classmates simply dilutes expectations for children
with disabilities.
We will modify Sec. 300.309(a)(1) to clarify that, as a first
element in determining whether a child has an SLD, the group must
determine that the child does not demonstrate achievement that is
adequate for the child's age or the attainment of State-approved grade-
level standards, when provided with learning experiences and
instruction appropriate for the child's age or State-approved grade-
level standards in one or more of the areas listed in Sec.
300.309(a)(1). The reference to ``State-approved grade-level
standards'' is intended to emphasize the alignment of the Act and the
ESEA, as well as to cover children who have been retained in a grade,
since age level expectations may not be appropriate for these children.
The reference to ``instruction'' will be added to emphasize that
children may not be identified as having SLD if there is no
documentation of appropriate instruction, consistent with the Act and
the ESEA. Consistent with this change, we will add a reference to
``State-approved grade-level standards'' in Sec. Sec. 300.309(a)(2)(i)
and (ii). We will also combine proposed Sec. 300.311(a)(5) and (6)
into Sec. 300.311(a)(5) to ensure consistency with the requirements in
Sec. 300.309(a).
Changes: We have modified Sec. 300.309(a)(1) and Sec. Sec.
300.309(a)(2)(i) and (ii), and combined proposed Sec. 300.311(a)(5)
and (6) into Sec. 300.311(a)(5) to ensure consistency with the
requirements in Sec. 300.309(a).
Comment: Several commenters expressed support for including reading
fluency in the list of areas to be considered when determining whether
a child has an SLD. However, several commenters recommended removing
reading fluency from the list in Sec. 300.309(a)(1), stating that a
weakness in reading fluency, in isolation, does not indicate a reading
disability.
Discussion: No assessment, in isolation, is sufficient to indicate
that a child has an SLD. Including reading fluency in the list of areas
to be considered when determining whether a child has an SLD makes it
more likely that a child who is gifted and has an SLD would be
identified. Fluency assessments are very brief and highly relevant to
instruction. We, therefore, do not believe that reading fluency should
be removed from Sec. 300.309(a)(1).
Changes: None.
Comment: Many commenters stated that eligibility criteria based on
RTI models will result in dramatic increases in referrals, special
education placements, and legal problems. One commenter stated that the
eligibility criteria in Sec. 300.309 do not provide sufficient checks
and balances to ensure that only those children who truly require
special education are identified as having SLD. A few commenters stated
that using an RTI model would result in incorrectly identifying
underachieving children as having SLD.
Discussion: We do not believe that eligibility criteria based on
RTI models will result in dramatic increases in referrals and special
education placements. Well-implemented RTI models and models that
identify problems early and promote intervention have reduced, not
increased, the number of children identified as eligible for special
education services and have helped raise achievement levels for all
children in a school.\8\ We believe that the regulations do provide
sufficient checks to ensure that only children who need special
education and related services are identified as having SLD.
---------------------------------------------------------------------------
\8\ Burns, M., Appleton, J., Stehouwer, J. (2005). Meta-analytic
review of responsiveness-to-intervention research: Examining field-
based and research-implemented models. Journal of Psychoeducational
Assessment, 23, 381-394.
---------------------------------------------------------------------------
Changes: None.
Comment: Several commenters stated that the language in Sec.
300.309(a)(2)(ii) is very confusing and should be rewritten. Many
commenters stated that the word ``or'' instead of ``and'' should be
used between Sec. 300.309(a)(2)(i) and Sec. 300.309(a)(2)(ii),
because otherwise a child could be identified with an SLD because he or
she failed to meet passing criteria on a State assessment, and failure
to make sufficient progress on a State-approved assessment alone is not
grounds for a determination that a child has an SLD. Several commenters
stated that the phrase, ``pattern of strengths and weaknesses in
performance, achievement, or both'' is a typographical error because it
is repeated twice.
Discussion: We do not agree that ``and'' should be used instead of
``or'' between Sec. 300.309(a)(2)(i) and (ii), because this would
subject the child to two different identification models. We agree that
failing a State assessment alone is not sufficient to determine whether
a child has an SLD. However, failing a State assessment may be one
factor in an evaluation considered by the eligibility group. As
required in Sec. 300.304(b)(1), consistent with section 614(b)(2)(A)
of the Act, the evaluation must use a variety of assessment tools and
strategies to gather relevant information about the child. Further,
Sec. 300.304(b)(2), consistent with section 614(b)(2)(B) of the Act,
is clear that determining eligibility for special education and related
services cannot be based on any single measure or assessment as the
sole criterion for determining whether a child is a child with a
disability.
We agree that Sec. 300.309(a)(2)(ii) could be stated more clearly
and will rewrite it to state that the eligibility group can determine
that a child has an SLD if the child meets the criteria in Sec.
300.309(a)(1) and exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age and State-approved
grade-level standards, or intellectual development, that is determined
by the group to be relevant to the identification of an SLD.
Changes: We have changed Sec. 300.309(a)(2)(ii) for clarity.
[[Page 46653]]
Comment: Several commenters requested a definition of ``State-
approved results.'' One commenter stated that the language was
extremely confusing and that ``State-approved results'' could be
interpreted to mean approved results that are equivalent to proficiency
on State assessments under the ESEA, and this could lead to eligibility
determinations for a very large group of older children with poor
reading performance for whom it would be nearly impossible to make
sufficient progress to become proficient readers. This commenter
recommended changing the language to refer to a child's failure to
achieve a rate of learning to make sufficient progress based on
``State-defined criteria.'' Another commenter recommended substituting
``State achievement standards'' for ``State approved results.''
Discussion: The intention is to refer to State assessments approved
under the ESEA. We have changed ``State-approved results'' to ``State-
approved grade-level standards.'' We believe this change adequately
addresses the commenters concerns.
Changes: We have removed ``State-approved results'' and inserted in
its place ``State-approved grade-level standards'' in Sec. 300.309 and
Sec. 300.311.
Comment: One commenter stated that including ``State-approved
results'' in Sec. 300.309(a)(2)(i) means that there is no Federal
definition of SLD.
Discussion: States must develop criteria for determining whether a
child has an SLD that are consistent with the Federal requirements in
Sec. Sec. 300.307 through 300.311 and the definition of SLD in Sec.
300.8(c)(10).
Changes: None.
Comment: A few commenters stated that using the criteria in Sec.
300.309(a)(2), a child could meet State standards and still be
identified as a child with an SLD.
Discussion: We agree with the commenters. Accelerated growth
toward, and mastery of, State-approved grade-level standards are goals
of special education. Furthermore, as stated in Sec. 300.101, the fact
that a child is advancing from grade to grade does not make a child
with a disability ineligible for special education and related
services. However, consistent with Sec. 300.8, the group making the
eligibility determination must conclude both that the child has an SLD
and, that, because of that disability, the child needs special
education and related services.
Changes: None.
Comment: Many commenters requested more detail and specific
guidelines on RTI models, such as information on who initiates the RTI
process and who should be involved in the process; how one ensures
there is a strong leader for the RTI process; the skills needed to
implement RTI models; the role of the general education teacher; how to
determine that a child is not responsive to instruction, particularly a
child with cultural and linguistic differences; the number of different
types of interventions to be tried; the responsibility for monitoring
progress; the measurement of treatment integrity; and ways to document
progress. One commenter stated that it is imperative that the
regulations allow the flexibility necessary to accommodate the array of
RTI models already in use.
Several commenters requested that the Department define and set a
standard for responsiveness that calls for demonstrated progress and
improvement in the rate of learning, to indicate that a child can
function in the classroom. Several commenters stated that there would
be a dramatic increase in the number of children identified with an SLD
without a clearly defined system in place.
Discussion: There are many RTI models and the regulations are
written to accommodate the many different models that are currently in
use. The Department does not mandate or endorse any particular model.
Rather, the regulations provide States with the flexibility to adopt
criteria that best meet local needs. Language that is more specific or
prescriptive would not be appropriate. For example, while we recognize
that rate of learning is often a key variable in assessing a child's
response to intervention, it would not be appropriate for the
regulations to set a standard for responsiveness or improvement in the
rate of learning. As we discussed earlier in this section, we do not
believe these regulations will result in significant increases in the
number of children identified with SLD.
Changes: None.
Comment: One commenter stated that, without additional clarity,
eligibility criteria will vary substantially among States and that
States will have definitions that are suited to their individual
preferences, rather than a universal sense of what constitutes
eligibility under SLD based on the research and national standards of
professional practice.
Discussion: State eligibility criteria must meet the requirements
in Sec. Sec. 300.307 through 300.111 and LEAs must use these State-
adopted criteria. We believe that, although these provisions allow
States some flexibility in how children with SLD are identified, the
requirements in these provisions will ensure that SLD criteria do not
vary substantially across States.
Changes: None.
Comment: One commenter stated that, without more clarity in the
requirements for RTI models, there would be an increase in the number
of eligibility disputes between parents and school districts.
Discussion: We do not believe more clarity in the requirements for
RTI models is necessary. States can avoid disputes over eligibility
determinations by developing clear criteria, consistent with the
regulatory parameters, and providing staff with the necessary guidance
and support to implement the criteria.
Changes: None.
Comment: One commenter urged the Department to encourage States to
convene a group of education, disability, and parent stakeholders to
discuss and design a model approach to early identification of children
with SLD.
Discussion: The Department agrees that it is important to identify
children with SLD early and to provide the necessary instruction and
supports to avoid referrals to special education. The extent to which
States involve other interested parties (e.g., disability groups,
parent groups) in the design or development of such a system is a
decision that should be made by each State.
Changes: None.
Comment: A few commenters stated that professional development
requirements to implement RTI models should be incorporated into the
regulations so RTI models are not haphazardly implemented. One
commenter stated that before RTI can be used systematically as part of
the special education identification process, school districts must
have administrative support at all levels, ongoing professional
development for all staff, and coordination with institutions of higher
education. Several commenters recommended encouraging States to develop
efficient, collaborative evaluation systems. One commenter recommended
requiring regular education teachers to address the needs of children
with different learning styles, identify early and appropriate
interventions for children with behavioral challenges, and understand
and use data and assessments to improve classroom practices and
learning.
Discussion: We agree that administrative support, professional
development, and coordination with teacher training programs would be
[[Page 46654]]
helpful in the effective implementation of RTI models. We also agree
that efficient and collaborative evaluation systems should be
developed, and that all teachers, including regular education teachers,
should be trained to address the needs of children with different
learning styles, identify early and appropriate interventions for
children with behavioral challenges, and understand and use data and
assessments to improve classroom practices and learning. However,
professional development requirements are a State responsibility,
consistent with Sec. 300.156 and section 612(a)(14) of the Act, and it
would be inappropriate for the Department to include specific
professional development requirements in these regulations.
Changes: None.
Comment: One commenter stated that if a State prohibits the use of
a discrepancy model, there would not be sufficient time or funds
necessary to effectively train staff. Several commenters asked that
there be a transition period so that personnel can be adequately
trained in RTI or other forms of assessment and observation.
Discussion: It is not necessary for these regulations to require a
transition period for implementing RTI models, particularly because
there are many schools and districts currently implementing RTI models.
Under the requirements in section 614(b)(6) of the Act, which took
effect July 1, 2005, States should have developed mechanisms to permit
LEAs to use RTI models. States may need to make adjustments based on
these final regulations. Nothing in these regulations requires an LEA
to drop current practices in favor of a new model with no transition.
Obviously, a plan would need to be developed when changing to an RTI
model, including strategies for implementation and professional
development.
Changes: None.
Comment: Many commenters stated that the use of RTI models would be
costly, requiring massive staff training and resources. Many commenters
recommended ways in which the Department could support States in
improving identification and interventions for children with SLD.
Commenters' recommendations included the following: long-term,
Statewide pilot studies on assessments and interventions for children
with SLD; methods to increase the use of RTI; guidance on establishing
appropriate timelines for instructional interventions; and information
on new scientifically based approaches to identifying children with
SLD.
Discussion: The Department recognizes the need for technical
assistance and training to implement RTI models and is directing
technical assistance funds under Part D of the Act, administered by the
Department's Office of Special Education Programs (OSEP), toward this
effort. OSEP plans to develop and disseminate an RTI resource kit and
devote additional resources to technical assistance providers to assist
States in implementing RTI models. OSEP will also continue to identify
and develop model RTI implementation sites and evaluate SLD
identification models in math and reading. In addition, the
Comprehensive Center on Instruction, jointly funded by OSEP and the
Office of Elementary and Secondary Education (OESE), will provide
technical assistance to States on RTI implementation.
Changes: None.
Comment: Many commenters supported examining the pattern of
strengths and weaknesses in determining whether a child is considered
to have an SLD. A number of commenters stated that it is important that
groups use a process to determine whether a child responds to
scientific, research-based interventions, as well as consider relevant,
empirically validated patterns of strengths and weaknesses in
achievement, performance, or both, relative to intellectual
development. One commenter stated that ``pattern of strengths and
weaknesses in performance'' in Sec. 300.309(a)(2)(ii) is
insufficiently defined and without a clearer definition of ``pattern,''
schools will continue the wait-to-fail model. One commenter recommended
clarifying the meaning of ``weakness,'' stating that weakness does not
mean failure, and that there may be specific actions that could address
weaknesses in performance that would result in failure if left alone.
Discussion: Patterns of strengths and weaknesses commonly refer to
the examination of profiles across different tests used historically in
the identification of children with SLD. We believe that the meaning of
``pattern of strengths and weaknesses'' is clear and does not need to
be clarified in these regulations.
Changes: None.
Comment: Some commenters stated that using a pattern of strengths
and weaknesses in a child's performance to identify a child with an SLD
could be misinterpreted to identify children, other than children with
disabilities, who are underperforming due to cultural factors,
environmental or economic disadvantage, or low effort.
Discussion: Section 300.309(a)(3) is clear that children should not
be identified with SLD if the underachievement is primarily the result
of a visual, hearing, or motor disability; mental retardation;
emotional disturbance; cultural factors; or environmental or economic
disadvantage. The eligibility group makes the determination after the
evaluation of the child is completed. Therefore, we believe that there
is minimal risk that a child who is underachieving due to these factors
will be identified as having an SLD.
Changes: None.
Comment: Some commenters recommended using ``cognitive ability'' in
place of ``intellectual development'' because ``intellectual
development'' could be narrowly interpreted to mean performance on an
IQ test. One commenter stated that the term ``cognitive ability'' is
preferable because it reflects the fundamental concepts underlying SLD
and can be assessed with a variety of appropriate assessment tools. A
few commenters stated that the reference to identifying a child's
pattern of strengths and weaknesses that are not related to
intellectual development should be removed because a cognitive
assessment is critical and should always be used to make a
determination under the category of SLD.
Discussion: We believe the term ``intellectual development'' is the
appropriate reference in this provision. Section 300.309(a)(2)(ii)
permits the assessment of patterns of strengths and weakness in
performance, including performance on assessments of cognitive ability.
As stated previously, ``intellectual development'' is included as one
of three methods of comparison, along with age and State-approved
grade-level standards. The term ``cognitive'' is not the appropriate
reference to performance because cognitive variation is not a reliable
marker of SLD, and is not related to intervention.
Changes: None.
Comment: One commenter reviewed the list of factors in Sec.
300.309(a)(3) that must be ruled out as primary reasons for a child's
performance and asked whether children with other health impairments
(OHI), traumatic brain injury (TBI), or speech impairments would
overlap with the SLD definition. Several commenters noted that many
children with hearing, visual, or motor disabilities; mental
retardation; or emotional disturbances (ED) also have concomitant
learning disabilities that go unidentified, and that these children end
up with lower academic and functional achievement levels than they
[[Page 46655]]
should because an important contributing factor to their learning
problems has not been addressed. Several commenters recommended adding
language to the regulations stating that a child with a disability
other than an SLD may also be identified with an SLD.
Discussion: Children with one of the disabilities in Sec. 300.8
should be identified as a child with a disability using the category
that is most appropriate for the child. Some children may be identified
under other disability categories, such as OHI, TBI, ED, or speech
impairment, and may also have low achievement and even meet SLD
criteria. Services must meet the child's needs and cannot be determined
by the child's eligibility category. We believe it is unnecessary to
add language regarding SLD as a concomitant disability.
Changes: None.
Comment: One commenter asked what kind of assessment identifies
culture as a primary cause of academic performance deficits and
recommended removing the requirement in Sec. 300.309(a)(3)(iv) unless
there are objective methods to determine whether a child's low
performance is a result of cultural factors.
Discussion: The identification of the effect of cultural factors on
a child's performance is a judgment made by the eligibility group based
on multiple sources of information, including the home environment,
language proficiency, and other contextual factors gathered in the
evaluation. The Department believes that the identification of children
with SLD will improve with models based on systematic assessments of a
child's response to appropriate instruction, the results of which are
one part of the information reviewed during the evaluation process to
determine eligibility for special education and related services.
States and public agencies must follow the evaluation procedures in
Sec. Sec. 300.304 and 300.305 and section 614(b) of the Act, including
using assessments and other evaluation materials that do not
discriminate on a racial or cultural basis, consistent with Sec.
300.304(c)(1)(i) and section 614(b)(3)(A)(i) of the Act.
Changes: None.
Comment: Many commenters recommended that limited English
proficiency be among the factors that the eligibility group must rule
out as a primary factor affecting a child's performance.
Discussion: Section 300.306(b)(1)(iii), consistent with section
614(b)(5)(C) of the Act, is clear that a child must not be identified
as a child with a disability if the determinant factor for that
determination is limited English proficiency. However, we agree that it
is important to re-emphasize this requirement in Sec. 300.309 and will
add this to the list of factors that the eligibility group must rule
out as a primary factor affecting a child's performance.
Changes: We have added a new paragraph (vi) to Sec. 300.309(a)(3)
to include ``limited English proficiency'' in the list of factors that
must be ruled out as a primary factor affecting a child's performance
before determining that a child is eligible for special education
services under the category of SLD.
Comment: Numerous commenters supported the requirement in Sec.
300.309(b)(1) for data demonstrating that a child suspected of having
an SLD has been provided with high-quality, research-based instruction
in regular education settings delivered by qualified personnel. Several
commenters stated that this requirement should apply to all children
and asked why this requirement is confined to only children suspected
of having SLD. One commenter stated that if schools would use proven
best practices, there would be fewer children in need of special
education in the later grades. However, one commenter stated that it is
incorrect to assume that any child who is not responding to
interventions must have an SLD when there are a myriad of reasons why
children may not be responding to instruction. One commenter
recommended adding ``to the extent practicable'' to acknowledge that
scientific research-based interventions are not available in many
areas, particularly in mathematics. One commenter recommended
decreasing the emphasis on research-based instruction.
Discussion: Sections 300.306(b)(1)(i) and (ii), consistent with
section 614(b)(5)(A) and (B) of the Act, specifically state that
children should not be identified for special education if the
achievement problem is due to lack of appropriate instruction in
reading or mathematics. This issue is especially relevant to SLD
because lack of appropriate instruction in these areas most commonly
leads to identifying a child as having an SLD. All children should be
provided with appropriate instruction provided by qualified personnel.
This is an important tenet of the Act and the ESEA. Both the Act and
the ESEA focus on doing what works as evidenced by scientific research
and providing children with appropriate instruction delivered by
qualified teachers.
Changes: None.
Comment: We received a number of comments concerning the
requirement for high-quality, research-based instruction provided by
qualified personnel. One commenter stated that it would be difficult
for rural school districts to meet this requirement because of staffing
requirements in the regular education setting. Several commenters
stated that the requirement for high-quality, research-based
instruction exceeds statutory authority and should be removed, because
it provides a basis for challenging any determination under the
category of SLD. One commenter asked for clarification regarding the
legal basis for providing high-quality, research-based instruction if
the child is not determined eligible for special education. Another
commenter stated that attorneys will read Sec. 300.309(b) as providing
a legal entitlement to ESEA, research-based instruction and data-based
documentation for every child considered for eligibility under the
category of SLD, and that when this standard is not met, will bring the
matter to a due process hearing and request compensatory education.
Numerous commenters requested a definition of high-quality,
research-based instruction. One commenter asked who validates that the
research meets the highest quality. Another commenter asked that the
regulations specify how much research a program must undergo before it
is deemed to be research-based. One commenter stated that the
Department must address how States determine whether a child has been
provided with a high-quality, research-based instructional program;
whether appropriate classroom interventions were delivered; and whether
an intervention has been successful. One commenter stated that the
absence of additional clarification would result in great disparity in
States' policies and lead to inappropriate interventions and
procedures. One commenter recommended that there be evidence that the
instruction is effective for the child's age and cultural background.
A few commenters recommended that children who are not progressing
because they have not received research-based instruction by a
qualified teacher should immediately receive intensive, high-quality,
research-based instruction by qualified personnel. One commenter
expressed concern that Sec. 300.309(b) restricts referrals to only
those children who have received high-quality, research-based
instruction from qualified teachers. One commenter stated that a
child's eligibility to receive
[[Page 46656]]
special education services under the category of SLD appears to be
contingent on the LEA's commitment to providing effective regular
education services by qualified staff, and, as such, a child with an
SLD is held hostage by a system that is not working. One commenter
asked whether the eligibility group can make a determination that a
child has an SLD in the absence of a child's response to high-quality
research-based instruction.
Several commenters stated that the lack of research-based
instruction by a qualified teacher should not limit a child's
eligibility for services. Another commenter recommended clarifying that
a child should not be found ineligible under the category of SLD
because the child either did not respond to a scientific, research-
based intervention during a truncated evaluation, or because the child
was not provided an opportunity to respond to such an intervention.
Discussion: Watering down a focus on appropriate instruction for
any children, including children with disabilities or children living
in rural areas would be counter to both the Act and the ESEA. However,
we agree that the requirement for high quality, research-based
instruction exceeds statutory authority. The Act indicates that
children should not be eligible for special education if the low
achievement is due to lack of appropriate instruction in reading or
math. Therefore, we will change the regulations to require that the
eligibility group consider evidence that the child was provided
appropriate instruction and clarify that this means evidence that lack
of appropriate instruction was the source of underachievement.
The eligibility group should not identify a child as eligible for
special education services if the child's low achievement is the result
of lack of appropriate instruction in reading or math. Eligibility is
contingent on the ability of the LEA to provide appropriate
instruction. Determining the basis of low achievement when a child has
been given appropriate instruction is the responsibility of the
eligibility group.
Whether a child has received ``appropriate instruction'' is
appropriately left to State and local officials to determine. Schools
should have current, data-based evidence to indicate whether a child
responds to appropriate instruction before determining that a child is
a child with a disability. Children should not be identified as having
a disability before concluding that their performance deficits are not
the result of a lack of appropriate instruction. Parents of children
with disabilities have due process rights that allow them to file a
complaint on any matter that relates to the identification, evaluation,
and educational placement of their child with a disability, and the
provision of FAPE to their child.
Changes: We have revised the introductory material in Sec.
300.309(b) to emphasize that the purpose of the review is to rule out a
lack of appropriate instruction in reading or math as the reason for a
child's underachievement. We have also revised Sec. 300.309(b)(1) to
refer to appropriate instruction rather than high-quality, research-
based instruction, and removed the cross reference to the ESEA.
Comment: One commenter stated that many reading programs claim to
be research-based, but lack credible evidence of the program's
effectiveness.
Discussion: Programs that claim to be research-based, but which are
not based on sound scientific research, should not be considered
research-based instruction by a State or LEA.
Changes: None.
Comment: One commenter asked what criteria should be used to
determine that the child was provided with appropriate high quality,
research-based instruction, especially when the child has been home
schooled or attends a private school. One commenter asked about
children referred for evaluation from charter schools and expressed
concern that these children would not be eligible under the category of
SLD because they did not have instruction delivered by qualified
personnel.
Discussion: As part of the evaluation, the eligibility group must
consider whether the child received appropriate instruction from
qualified personnel. For children who attend private schools or charter
schools or who are home-schooled, it may be necessary to obtain
information from parents and teachers about the curricula used and the
child's progress with various teaching strategies. The eligibility
group also may need to use information from current classroom-based
assessments or classroom observations. On the basis of the available
information, the eligibility group may identify other information that
is needed to determine whether the child's low achievement is due to a
disability, and not primarily the result of lack of appropriate
instruction. The requirements for special education eligibility or the
expectations for the quality of teachers or instructional programs are
not affected, and do not differ, by the location or venue of a child's
instruction.
Changes: None.
Comment: Many commenters requested a definition of ``qualified
personnel.'' One commenter stated that teachers should be trained to
deliver the program of instruction and simply saying they should be
highly qualified is not sufficient. One commenter recommended removing
the phrase ``qualified personnel'' in Sec. 300.309(b)(1), because it
is likely to be interpreted to mean that instruction must be delivered
by highly qualified teachers, as defined in the ESEA.
Discussion: Section 300.156 and section 614(a)(14) of the Act are
clear that each State is responsible for establishing and maintaining
personnel qualifications to ensure that personnel are appropriately and
adequately prepared and trained, including that those personnel have
the content knowledge and skills to serve children with disabilities.
Consistent with Sec. 300.18 and section 602(10) of the Act, a public
school teacher, including a special education teacher, who teaches core
academic subjects must meet the highly qualified teacher standards
under the Act. The term that is used in Sec. 300.309(b)(1),
``qualified personnel,'' does not, and should not be interpreted to,
require that private school teachers be ``highly qualified'' to deliver
the instruction discussed in Sec. 300.309(b)(1).
Changes: None.
Comment: One commenter asked whether the regulations require an LEA
to provide high-quality, research-based instruction in the regular
education setting prior to, or as part of, the referral process before
the group can determine whether a child has an SLD. One commenter
recommended that research-based interventions occur prior to a referral
to special education. Several commenters stated that an evaluation to
assess all areas of suspected disability should follow an assessment of
a child's response to instruction.
Discussion: What is important is that the group making the
eligibility decision has the information that it needs to rule out that
the child's underachievement is a result of a lack of appropriate
instruction. That could include evidence that the child was provided
appropriate instruction either before, or as a part of, the referral
process. Evidence of appropriate instruction, including instruction
delivered in an RTI model, is not a substitute for a complete
assessment of all of the areas of suspected need. As discussed earlier
in this section, we have revised Sec. 300.309(b) to make this clear.
Changes: As discussed previously, we have revised Sec. 300.309(b).
[[Page 46657]]
Comment: One commenter recommended that data be maintained on the
number of children identified with SLD.
Discussion: Data are maintained on the number of children
identified with SLD. Section 618 of the Act requires States to report
annually to the Department the number and percentage of children with
disabilities by disability category, in addition to race, ethnicity,
limited English proficiency status, and gender.
Changes: None.
Comment: Many commenters recommended reinforcing the role of
parents in determining whether a child has an SLD by adding language to
Sec. 300.309(b) stating that the child's parents and the group of
qualified professionals must consider whether the child is a child with
a disability.
Discussion: Section 300.306(a)(1), consistent with section
614(b)(4)(A) of the Act, is clear that the parent of the child is
included in eligibility determinations. Section 300.309(a) cross-
references the group in Sec. 300.306, which includes the parent. We
believe this adequately addresses the role of the parent and that no
changes are necessary.
Changes: None.
Comment: One commenter requested a definition of ``data-based
documentation.''
Discussion: Data-based documentation refers to an objective and
systematic process of documenting a child's progress. This type of
assessment is a feature of strong instruction in reading and math and
is consistent with Sec. 300.306(b)(1)(i) and (ii) and section
614(b)(5)(A) and (B) of the Act, that children cannot be identified for
special education if an achievement problem is due to lack of
appropriate instruction in reading or math.
Changes: None.
Comment: Numerous commenters supported requiring data-based
documentation of repeated assessments of achievement at reasonable
intervals to be provided to parents during the time the child is
receiving instruction. One commenter emphasized the importance of
documenting that the interventions used are data based and implemented
with fidelity. One commenter stated that data-based documentation
should be provided to all parents of children with disabilities, not
just children suspected of having SLD. However, several commenters
stated that requiring data-based documentation of repeated assessments
is an additional bureaucratic requirement that is overly prescriptive
and costly, and will require additional paperwork.
Discussion: We believe that one of the most important aspects of
good teaching is the ability to determine when a child is learning and
then to tailor instruction to meet the child's individual needs.
Effective teachers use data to make informed decisions about the
effectiveness of a particular instructional strategy or program. A
critical hallmark of appropriate instruction is that data documenting a
child's progress are systematically collected and analyzed and that
parents are kept informed of the child's progress. Assessments of a
child's progress are not bureaucratic, but an essential component of
good instruction.
Changes: None.
Comment: Several commenters requested definitions for ``repeated
assessments'' and ``reasonable intervals.''
Discussion: Instructional models vary in terms of the frequency and
number of repeated assessments that are required to determine a child's
progress. It would be inappropriate for the Department to stipulate
requirements in Federal regulations that would make it difficult for
districts and States to implement instructional models they determine
appropriate to their specific jurisdictions.
Changes: None.
Comment: One commenter recommended removing the requirement for
data-based documentation of repeated assessments of achievement at
reasonable intervals because it would make it impossible to determine
eligibility if a child is new to a school district and district
personnel do not have a child's records with such information.
Discussion: We do not believe removing the requirement is the
appropriate solution to the commenter's problem. States will need to
adopt criteria for determining how to provide such data for children
new to a district. Children should not be identified as having SLD if
there is no evidence of appropriate instruction.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.309(b)(2),
requiring parents to be informed of their child's repeated failure to
perform well on assessments, could be interpreted to refer to the
assessments under the ESEA and that this would mean that a child must
perform poorly over a period of several school years to be considered
for eligibility under the category of SLD.
Discussion: While the results of a child's performance on
assessments under the ESEA may be included as data documenting a
child's progress, relying exclusively on data from Statewide
assessments under the ESEA would likely not meet the requirement for
repeated assessments at ``reasonable intervals,'' as required by these
regulations. It is possible that a State could develop other
assessments tied to the State approved test that would meet these
requirements.
Changes: None.
Comment: Numerous commenters asked how long an intervention should
continue before determining a child has not made adequate progress and
a referral for an evaluation to determine eligibility for special
education is made. Several commenters recommended that if a child is
not making progress within 45 days, an evaluation should take place.
Other commenters recommended a time limit of 90 days. One commenter
recommended the regulations include a range of active intervention
days, not just a waiting period, within which the IEP Team expects to
notice a change, and recommended between 45-75 school days. One
commenter suggested 6-10 weeks as an appropriate period of time.
A few commenters recommended requiring States to establish
reasonable time limits for decision making. Several commenters
recommended requiring the IEP Team and the parents to agree on an
appropriate period of time.
Several commenters stated that unless a timeline is specified in
the regulations, there would be different standards occurring
throughout the country. A few commenters expressed concern that if time
limits were not clarified, school districts and parents would interpret
the timelines differently, which would result in contentious situations
and litigation. One commenter stated that a parent could sue for
compensatory services if, after requesting an evaluation, the LEA
requires an assessment of how the child responds to high quality
research-based instruction.
Several commenters stated that the lack of a specific timeline
means that an evaluation could be indefinitely delayed and children
denied services. Several commenters recommended adding language to the
regulations to ensure that RTI models could not be used to delay an
evaluation of a child suspected of having a disability, access to
special education and related services, or protections under the Act.
In addition to requesting a definition of an ``appropriate period
of time,'' a few commenters requested a definition of ``adequate
progress'' and recommended adding language to
[[Page 46658]]
require States to define ``adequate progress.'' One commenter stated
that a child's rate of learning needs to be examined carefully. One
commenter offered a definition of a ``developmentally appropriate
rate'' as the time or the number of repetitions required to have at
least 85 percent of children at the same age or grade level acquire and
retain the particular skill or academic levels, as established by
research or by experience with the delivery of that curriculum or
program.
Discussion: Instructional models vary in terms of the length of
time required for the intervention to have the intended effect on a
child's progress. It would not be appropriate for the Department to
establish timelines or the other requirements proposed by the
commenters in Federal regulations, because doing so would make it
difficult for LEAs to implement models specific to their local school
districts. These decisions are best left to State and local
professionals who have knowledge of the instructional methods used in
their schools.
The Department believes that good instruction depends on repeated
assessments of a child's progress. This allows teachers to make
informed decisions about the need to change their instruction to meet
the needs of the child, and also provides parents with information
about their child's progress so that they can support instruction and
learning at home. Parents should be informed if there are concerns
about their child's progress and should be aware of the strategies
being used to improve and monitor their child's progress.
We understand the commenters' requests for more specific details on
timelines and measures of adequate progress. However, as noted above,
these decisions are best left to professionals who have knowledge about
the instructional models and strategies used in their States and
districts.
We also understand the commenters' concerns that the requirements
in Sec. 300.309(b) may result in untimely evaluations or services and
that parents must be fully informed about the school's concerns about
their child's progress and interventions provided by the school.
Therefore, we will combine proposed Sec. 300.309(c) and (d), and
revise the new Sec. 300.309(c) to ensure that the public agency
promptly requests parental consent to evaluate a child suspected of
having an SLD who has not made adequate progress when provided with
appropriate instruction, which could include instruction in an RTI
model, and whenever a child is referred for an evaluation. We will also
add a new Sec. 300.311(a)(7)(ii) to ensure that the parents of a child
suspected of having an SLD who has participated in a process that
evaluates the child's response to scientific, research-based
intervention, are notified about the State's policies regarding
collection of child performance data and the general education services
that will be provided; strategies to increase their child's rate of
learning; and their right to request an evaluation at any time. If
parents request an evaluation and provide consent, the timeframe for
evaluation begins and the information required in Sec. 300.309(b) must
be collected (if it does not already exist) before the end of that
period.
Changes: We have combined proposed Sec. 300.309(c) and (d), and
revised the new paragraph (c) in Sec. 300.309 to require the public
agency to promptly request parental consent to evaluate a child
suspected of having an SLD who has not made adequate progress when
provided appropriate instruction, and whenever a child is referred for
an evaluation. We also have added a new Sec. 300.311(a)(7)(ii) to
require that the eligibility report include evidence that when a child
has participated in an RTI process, the parents were informed of State
policies regarding child performance data that would be collected and
the general education services that would be provided; strategies to
support the child's rate of learning; and a parent's right to request
an evaluation at any time.
Comment: Many commenters recommended clarifying when parental
consent for evaluation should be obtained and when the 60-day timeline
to complete an evaluation begins. Several commenters recommended
ensuring that the 60-day timeline for evaluation applies regardless of
the evaluation model used. One commenter asked how scientific research-
based interventions could be completed within a 60-day evaluation
timeline. One commenter stated that 60 days may not be enough time to
appropriately determine whether a child responds to instruction,
particularly for children who have not had exposure to such
interventions (e.g., children entering the public school system for the
first time). One commenter asked if the intent of the regulations is to
allow a determination that a child has an SLD to take place outside the
timeline for an initial evaluation, and stated that without
clarification of the intersection between an RTI process (that may, by
definition, require additional time beyond that which is permitted for
an evaluation) and the required period of time for an initial
assessment, the regulations would cause confusion and result in
improper evaluations and eligibility determinations.
Several commenters recommended that the regulations address the
need for an extension of the timeline and allow States to set an
alternative timeline without a written agreement. Several commenters
requested adding a provision for an extended timeline, with parental
consent, in exceptional circumstances. Several commenters stated that
the language regarding an extension of timelines is confusing.
Discussion: Section 300.309(c), as revised, clarifies that if a
child has not made adequate progress after an appropriate period of
time, a referral for an evaluation must be made. As required in Sec.
300.301(c), the initial evaluation must be conducted within 60 days of
receiving consent for an evaluation (or if the State establishes a
timeframe within which the evaluation must be completed, within that
timeframe). Models based on RTI typically evaluate the child's response
to instruction prior to the onset of the 60-day period, and generally
do not require as long a time to complete an evaluation because of the
amount of data already collected on the child's achievement, including
observation data. RTI models provide the data the group must consider
on the child's progress when provided with appropriate instruction by
qualified professionals as part of the evaluation.
Section 300.309(b)(1) requires that the eligibility group consider
data on the child's progress when provided with appropriate instruction
by qualified professionals as part of this evaluation. These data,
along with other relevant information, will assist the eligibility
group in determining whether the child's low achievement is
attributable to a lack of appropriate instruction. As required in Sec.
300.306(b)(1)(i) and (ii), consistent with section 614(b)(5)(A) and (B)
of the Act, a child cannot be identified as a child with a disability
if the determinant factor for that determination is lack of appropriate
instruction in reading or math.
Based on their review of the existing data, and input from the
child's parents, the eligibility group must decide, on a case-by-case
basis, depending on the needs of the child and the information
available regarding the child, what additional data, if any, are needed
to determine whether the child is a child with a disability, and the
educational needs of the child. If the eligibility group determines
that additional data are needed and that these data cannot be
[[Page 46659]]
obtained within the 60-day timeframe (or the timeframe established by
the State), new Sec. 300.309(c) (proposed Sec. 300.309(d)) allows the
extension of the timeframe with mutual written agreement of the child's
parent and the eligibility group.
Changes: None.
Comment: One commenter asked how the 60-day timeframe would be
followed if the time extends over school breaks.
Discussion: The 60-day timeframe refers to 60 calendar days and
would include school breaks.
Changes: None.
Comment: Several commenters stated that the regulations appear to
set up a separate process and procedure for the evaluation and
identification of children with SLD, and then impose the timeframe and
procedures that apply to the evaluation of all other disability
categories. One commenter stated that the timeframe for evaluating
children with SLD is less stringent than for other disability
categories and is, therefore, discriminatory.
Discussion: Although there are additional criteria and procedures
for evaluating and identifying children suspected of having SLD, the
group must also comply with the procedures and timelines that apply to
all evaluations, including evaluations for SLD. Evaluation of children
suspected of having SLD must follow the same procedures and timeframes
required in Sec. Sec. 300.301 through 300.306, in addition to those in
Sec. Sec. 300.307 through 300.311.
Changes: None.
Comment: One commenter stated that ``appropriate period of time''
should be replaced with ``reasonable period of time'' because courts
are accustomed to deciding what constitutes a reasonable timeframe in
various evaluation contexts.
Discussion: It is not necessary to change ``appropriate period of
time'' to ``reasonable period of time,'' because the terms here have
similar meanings and are commonly understood to be synonymous.
Changes: None.
Comment: One commenter requested that the regulations clarify who
should refer a child for an evaluation to determine eligibility for
special education services.
Discussion: Under Sec. 300.301(b), and consistent with the
requirements in Sec. 300.300 and section 614(a)(1)(D) of the Act,
either a parent of a child or a public agency may initiate a request
for an evaluation at any time to determine if the child is a child with
a disability. We do not believe that further clarification is
necessary.
Changes: None.
Comment: One commenter stated that a school district should retain
its discretion not to evaluate a child subject to the parent's right to
contest the decision through due process procedures.
Discussion: The commenter's concern is already addressed in Sec.
300.111, which provides that an LEA must identify, locate, and evaluate
children who are in need of special education and related services. If
an LEA refuses to evaluate a child, the LEA must provide prior written
notice, consistent with Sec. 300.503 and section 615(b)(3) of the Act.
The parent can challenge this decision through a due process hearing.
Changes: None.
Observation (Sec. 300.310)
Comment: Many commenters recommended removing the observation
requirements in Sec. 300.310, stating that they are costly and overly
prescriptive and have no statutory basis. One commenter stated that the
requirements for determining eligibility under the category of SLD are
so specific that the observation requirements are unnecessary.
Discussion: The observation requirements for children suspected of
having SLD have been in the regulations since before 1983. Important
information can be obtained about a child through observation in the
classroom, or for a child less than school age, in an environment
appropriate for a child of that age. Objective observations are
essential to assessing a child's performance and should be a part of
routine classroom instruction and are not costly or overly
prescriptive. We believe the observation requirements are an important
matter to regulate clearly. We will, therefore, change Sec. 300.310(a)
through Sec. 300.310(c) to clearly state that the public agency must
ensure appropriate observation and documentation of the child's
academic performance and behavior in the areas of difficulty to
determine whether a child has an SLD.
Changes: We have changed Sec. 300.310(a) through Sec. 300.310(c)
to clearly state the observation requirements in determining whether a
child has an SLD.
Comment: Several commenters supported requiring a member of the
group to be trained in observation. Many commenters requested
clarification regarding what it means to be trained in observation. One
commenter stated that there are no established training protocols or
uniform professional standards for conducting an observation.
Discussion: We agree that the requirement for an individual to be
trained in observation is unclear and should be removed. States are
responsible for determining specific personnel qualification
requirements, and, for the reasons stated under Sec. 300.308, States
and LEAs should determine appropriate group membership.
Changes: We have removed the phrase ``trained in observation'' from
Sec. 300.310(a).
Comment: Several commenters stated that the public agency should
determine the most appropriate individual to conduct the observation.
One commenter recommended specifying a reading specialist to conduct
the observation when the child's learning problems involve reading.
Another commenter stated that the observer should not be limited to a
member of the eligibility group. One commenter stated that it is not
necessary to obtain parental consent for the observation.
Discussion: The person conducting the observation should be a
member of the eligibility group because information from the
observation will be used in making the eligibility determination. If
information is available from an observation conducted as part of
routine classroom instruction that is important for the eligibility
group to consider, the eligibility group should include the person who
conducted that routine classroom. This will eliminate redundant
observations and save time and resources. Parental consent is not
required for observations conducted as part of routine classroom
instruction and monitoring of the child's performance before the child
is referred for an evaluation.
If an observation has not been conducted, or additional observation
data are needed, the decision as to which person should conduct the
observation is best left to members of the eligibility group, based on
the type of information that is needed to make the eligibility
determination and identify the child's needs. Parental consent is
required for observations conducted after the child is suspected of
having a disability and is referred for an evaluation. We will revise
Sec. 300.310 to clarify the different ways in which observation data
may be obtained and to clarify that parental consent is required for
observations conducted after the child is suspected of having a
disability and is referred for an evaluation.
Changes: We have revised Sec. 300.310 to specify in paragraph (a)
that the public agency must ensure that the child is observed in the
child's learning environment. A new Sec. 300.310(b) has
[[Page 46660]]
been added to require the eligibility group to use the information
obtained from the routine classroom observation or conduct a new
observation and to require parental consent for observations conducted
after the child is suspected of having a disability and is referred for
an evaluation. Proposed Sec. 300.310(b) has been redesignated as new
Sec. 300.310(c).
Comment: One commenter requested clarification regarding the
definition of an ``appropriate'' environment in which to conduct the
observation of a child who is less than school age, as well as guidance
in determining what such an environment would be for children who are
out of school.
Discussion: The eligibility group is in the best position to
determine the environment appropriate for a child who is less than
school age or out of school.
Changes: None.
Comment: One commenter requested clear guidance about the working
relationship between the special education teacher and the general
education teacher in conducting an observation.
Discussion: We decline to provide specific guidance on the working
relationship between the special education teacher and the general
education teacher in conducting an observation because this
relationship will necessarily vary depending on how classrooms are
structured and teacher responsibilities assigned. Such decisions are
best made at the local level. Generally, we would expect that the
child's general education teacher would have data from routine
classroom instruction and would work with the other members of the
eligibility group to determine what additional data, if any, are needed
to determine whether a child has an SLD. A special education teacher
who is experienced in working with children with SLD, for example,
might have suggestions on ways to structure a particular observation
session to obtain any additional information that is needed, and may be
able to assist the general education teacher in gathering the data.
Changes: None.
Comment: One commenter recommended requiring an observation for any
child suspected of having a disability, not just those suspected of
having an SLD.
Discussion: Observation data will generally be a part of the
existing data reviewed for any child suspected of having a disability.
Section 300.305(a)(1) requires the eligibility group for any child
suspected of having a disability to review existing evaluation data,
including classroom-based observations and observations by teachers and
related services providers. We do not believe that requiring an
observation of children suspected of other disabilities is necessary,
however, as identification of those other disabilities is not always as
dependent on classroom performance and behavior as is identification of
children with SLD.
Changes: None.
Specific Documentation for the Eligibility Determination (Proposed
Written Report) (Sec. 300.311)
Comment: Several commenters supported the requirements for the
written report, stating that they provide a useful framework for
practitioners. However, several commenters stated that the requirements
for the written report should be removed because they go beyond the
requirements of the Act and impose additional procedural and paperwork
burdens for school personnel. Several commenters stated that the report
is much more detailed than the evaluation and eligibility report for
children with other disabilities, and stated that this could discourage
schools from evaluating children suspected of having SLD.
Discussion: Section 614(b)(4)(B) of the Act requires the public
agency to provide a copy of the evaluation report and the documentation
of determination of eligibility to the parents for all children
evaluated under the Act. Section 300.311 specifies the content for the
evaluation report for children suspected of having SLD. States and LEAs
have more discretion over the specific content of an evaluation report
for children suspected of having a disability under the other
disability categories. Therefore, whether the SLD evaluation report is
more detailed or burdensome than other evaluation reports would depend
on State and local requirements. We believe that the elements of the
report specified in Sec. 300.311 provide important checks to prevent
misidentification and ensure that children who actually have SLD are
identified.
Changes: None.
Comment: Several commenters recommended that the written report
include statements regarding the existence of a psychological
processing disorder and the basis for making the determination; whether
the child achieved commensurate with the child's age and ability;
whether the child achieved commensurate with the child's age and
intellectual development; whether the child achieved commensurate with
the child's peers; and whether there are strengths and weaknesses in
performance or cognitive abilities in one or more of the areas in Sec.
300.309(a) that require special education and related services.
Discussion: We decline to change the content of the written report
in the manner recommended by the commenters because the statements that
commenters recommended be included in the written report are
inconsistent with the eligibility requirements for children with SLD in
Sec. 300.309.
Changes: None.
Comment: One commenter recommended including an assurance that the
eligibility determination was made in accordance with Sec.
300.306(c)(1), regarding procedures for determining eligibility and
placement, and Sec. 300.8(c)(10), regarding the definition of specific
learning disability.
Discussion: Section 300.311(b) requires each member of the
eligibility group to certify in writing whether the report reflects the
particular member's conclusion about whether the child has an SLD, and
if it does not reflect his or her conclusion, submit a separate
statement presenting his or her conclusions. There is no need for any
additional assurances.
Changes: None.
Comment: One commenter stated that including ``evaluation report''
in the description of the written report is confusing because it is
unclear whether the evaluation report is something additional to the
written report.
Discussion: The information required in the written report in Sec.
300.311 is a part of the documentation of eligibility required in Sec.
300.306(a)(2). Section 300.306(b) and (c) lists the requirements for
eligibility determinations for all children suspected of having a
disability, including children suspected of having SLD. Section 300.311
provides specific elements that must be addressed in the report for
children suspected of having SLD. Two separate reports are not
necessary as long as the information in Sec. 300.311 is included in
the documentation of the eligibility determination in Sec.
300.306(a)(2). We agree that this should be clarified. Therefore, we
will change the heading for Sec. 300.311 from ``Written report'' to
``Specific documentation for the eligibility determination'' and will
modify the language in Sec. 300.311(a) accordingly.
Changes: We have changed the heading for Sec. 300.311 and modified
Sec. 300.311(a) to clarify that the requirements in Sec. 300.311 are
in addition to the requirements for the documentation of the
eligibility
[[Page 46661]]
determination required in Sec. 300.306(a)(2).
Comment: Several commenters requested that the written report
include the determination of the group concerning the effects of
cultural factors, limited English proficiency, and environmental or
economic disadvantage to be consistent with all the elements in Sec.
300.309(a)(3).
Discussion: We agree that it is important to emphasize the
importance of considering such factors in determining eligibility under
SLD and will add these factors in Sec. 300.311(a).
Changes: We have added a new paragraph (6) to Sec. 300.311(a) to
require the written report to include a statement on the effects of
cultural factors, limited English proficiency, environmental, or
economic disadvantage.
Comment: Several commenters requested clarification of what happens
if a group member disagrees with the report and agreement is never
reached. Other commenters asked whether services are delayed pending a
group consensus; whether the submission of a separate statement is
synonymous with a veto for eligibility; whether it matters which group
member submits a separate report; and whether each group member has
equal standing.
Discussion: The eligibility group should work toward consensus, but
under Sec. 300.306, the public agency has the ultimate responsibility
to determine whether the child is a child with a disability. Parents
and school personnel are encouraged to work together in making the
eligibility determination. If the parent disagrees with the public
agency's determination, under Sec. 300.503, the public agency must
provide the parent with prior written notice and the parent's right to
seek resolution of any disagreement through an impartial due process
hearing, consistent with the requirements in Sec. 300.503 and section
615(b)(3) of the Act.
Every effort should be made to resolve differences between parents
and school staff through voluntary mediation or some other informal
dispute resolution process. However, as stated in Sec.
300.506(b)(1)(ii) and section 615(e)(2)(A)(ii) of the Act, mediation or
other informal procedures may not be used to deny or delay a parent's
right to a due process hearing, or to deny any other rights afforded
under Part B of the Act.
Changes: None.
Individualized Education Programs
Definition of Individualized Education Program (Sec. 300.320)
General (Sec. 300.320(a))
We received numerous comments requesting that we require the IEP to
include additional content that is not in the Act. Under section
614(d)(1)(A)(ii)(I) of the Act, the Department cannot interpret section
614 of the Act to require public agencies to include additional
information in a child's IEP that is not explicitly required under the
Act. Therefore, we generally have not included these comments in our
analysis and discussion of Sec. 300.320.
Comment: One commenter requested that Sec. 300.320 refer to a
``student with a disability'' instead of a ``child with a disability.''
Discussion: The words ``child'' and ``student'' are used
interchangeably throughout the Act. The regulations follow the
statutory language whenever possible. In Sec. 300.320, we used the
term ``child with a disability,'' consistent with section 614(d) of the
Act.
Changes: None.
Comment: Many commenters recommended that the regulations include a
definition of ``functional'' as it is used, for example, in
``functional performance'' in Sec. 300.320(a)(1) and ``functional
goals'' in Sec. 300.320(a)(2). Some commenters suggested defining
``functional'' as the acquisition of essential and critical skills
needed for children with disabilities to learn specific daily living,
personal, social, and employment skills, or the skills needed to
increase performance and independence at work, in school, in the home,
in the community, for leisure time, and for postsecondary and other
life long learning opportunities. One commenter recommended that the
regulations include examples of functional skills and how functional
skills should be measured.
Discussion: It is not necessary to include a definition of
``functional'' in these regulations because we believe it is a term
that is generally understood to refer to skills or activities that are
not considered academic or related to a child's academic achievement.
Instead, ``functional'' is often used in the context of routine
activities of everyday living. We do not believe it is necessary to
include examples of functional skills in the regulations because the
range of functional skills is as varied as the individual needs of
children with disabilities. We also decline to include examples of how
functional skills are measured because this is a decision that is best
left to public agencies, based on the needs of their children. However,
it should be noted that the evaluation procedures used to measure a
child's functional skills must meet the same standards as all other
evaluation procedures, consistent with Sec. 300.304(c)(1).
Changes: None.
Comment: One commenter recommended revising Sec. 300.320(a) to
state that ``an IEP includes'' rather than ``an IEP must include'' in
order to reflect the specific language in section 614(d) of the Act.
The commenter stated that use of the word ``must'' limits the contents
of an IEP to the items listed in Sec. 300.320(a).
Discussion: The word ``must'' is used in Sec. 300.320(a) to
clarify that an IEP is required to include the items listed in Sec.
300.320(a). We believe it is important to retain this language in Sec.
300.320(a). Under section 614(d)(1)(A)(ii)(I) of the Act, section 614
of the Act cannot be interpreted to require content in the IEP beyond
that which is specified in the Act.
Changes: None.
Comment: One commenter requested clarifying the meaning of
``appropriate'' as used, for example, in Sec. 300.320(a)(1)(ii) to
refer to a child's participation in ``appropriate'' activities.
Discussion: The word ``appropriate'' in these regulations does not
have a different meaning from its common usage. Generally, the word
``appropriate'' is used to mean ``suitable'' or ``fitting'' for a
particular person, condition, occasion, or place.
Changes: None.
Comment: Some commenters recommended requiring the IEP to include a
statement of the relevant social and cultural background of a child and
how those factors affect the appropriate participation, performance,
and placement of the child in special education.
Discussion: Section 614(d)(1)(A)(ii)(I) of the Act precludes the
Department from interpreting section 614 of the Act to require public
agencies to include information in a child's IEP other than what is
explicitly required in the Act. Therefore, we cannot require the IEP to
include the statement requested by the commenters. However, a child's
social or cultural background is one of many factors that a public
agency must consider in interpreting evaluation data to determine if a
child is a child with a disability under Sec. 300.8 and the
educational needs of the child, consistent with Sec. 300.306(c)(1)(i).
Changes: None.
Comment: One commenter stated that adapted physical education
should be part of a child's IEP. Another
[[Page 46662]]
commenter recommended that travel training be required in the IEP.
Discussion: The definition of special education in new Sec. 300.39
(proposed Sec. 300.38) includes adapted physical education and travel
training. We do not believe adapted physical education and travel
training should be mandated as part of an IEP because, as with all
special education and related services, each child's IEP Team
determines the special education and related services that are needed
to meet each child's unique needs in order for the child to receive
FAPE. In addition, section 614(d)(1)(A)(ii)(I) of the Act prohibits the
Department from interpreting section 614 of the Act to require public
agencies to include information in a child's IEP that is not explicitly
required under the Act.
Changes: None.
Comment: One commenter recommended that IEPs include the array of
new tools used with nondisabled children, so that children with
disabilities have access to the materials they need to progress in the
general education curriculum.
Discussion: There is nothing in the Act that requires new tools or
the same tools and materials used by nondisabled children to be used
with children with disabilities or be specified in children's IEPs.
Therefore, we cannot make the requested change because section
614(d)(1)(A)(ii)(I) of the Act prohibits the Department from
interpreting section 614 of the Act to require public agencies to
include information in a child's IEP that is not explicitly required
under the Act. Each child's IEP Team determines the special education
and related services, as well as supplementary aids, services, and
supports that are needed to meet the child's needs in order to provide
FAPE consistent with Sec. 300.320(a)(4) and section
614(d)(1)(A)(i)(IV) of the Act.
Changes: None.
Present Levels of Academic Achievement and Functional Performance
(Sec. 300.320(a)(1))
Comment: A few commenters stated that Sec. 300.320(a)(1) requires
an IEP to include a statement of the child's present levels of academic
achievement, and recommended that the regulations define ``academic
achievement.''
Discussion: ``Academic achievement'' generally refers to a child's
performance in academic areas (e.g., reading or language arts, math,
science, and history). We believe the definition could vary depending
on a child's circumstance or situation, and therefore, we do not
believe a definition of ``academic achievement'' should be included in
these regulations.
Changes: None.
Comment: Some commenters recommended that the regulations clarify
that not every child requires a functional performance statement or
functional annual goals. Some commenters stated that requiring
functional assessments for all children places an unnecessary burden on
an LEA, does not add value for every child, and creates a potential for
increased litigation. One commenter recommended that Sec.
300.320(a)(1), regarding the child's present levels of performance, and
Sec. 300.320(a)(2), regarding measurable annual goals, clarify that
functional performance and functional goals should be included in a
child's IEP only if determined appropriate by the child's IEP Team.
Discussion: We cannot make the changes requested by the commenters.
Section 614(d)(1)(A)(i)(I) of the Act requires an IEP to include a
statement of the child's present levels of academic achievement and
functional performance.
Changes: None.
Comment: One commenter requested that the regulations require a
child's present levels of performance to be aligned with the child's
annual goals. Another commenter stated that the content of the IEP
should be aligned with the State's core curriculum content standards
and the knowledge and skills needed for children with disabilities to
become independent, productive, and contributing members of their
communities and the larger society.
Discussion: The IEP Team's determination of how the child's
disability affects the child's involvement and progress in the general
education curriculum is a primary consideration in the development of
the child's annual IEP goals. Section 300.320(a)(1)(i), consistent with
section 614(d)(1)(A)(i)(I)(aa) of the Act, requires the statement of a
child's present levels of performance in the IEP to include how the
child's disability affects the child's involvement and progress in the
general education curriculum. This directly corresponds with the
provision in Sec. 300.320(a)(2)(i)(A) and section
614(d)(1)(A)(i)(II)(aa) of the Act, which requires the IEP to include
measurable annual goals designed to meet the child's needs that result
from the child's disability to enable the child to be involved in and
make progress in the general education curriculum. We do not believe
further clarification is needed regarding the alignment of a child's
present levels of performance with the child's annual goals.
With regard to the alignment of the IEP with the State's content
standards, Sec. 300.320(a)(1)(i) clarifies that the general education
curriculum means the same curriculum as all other children. Therefore,
an IEP that focuses on ensuring that the child is involved in the
general education curriculum will necessarily be aligned with the
State's content standards. Congress acknowledged, in section
601(c)(5)(A) of the Act, that ensuring access to the general education
curriculum in the regular classroom, to the maximum extent possible, is
also effective in preparing children with disabilities to lead
productive and independent adult lives. We do not believe further
clarification is necessary to address the commenters' concerns.
Changes: None.
Measurable Annual Goals (Sec. 300.320(a)(2))
Comment: One commenter requested clarification as to whether IEP
goals must be specific to a particular discipline (e.g., physical
therapy goals, occupational therapy goals). One commenter recommended
that goals be explicitly defined and objectively measured. Another
commenter recommended requiring IEP goals to have specific outcomes and
measures on an identified assessment tool. One commenter recommended
clarifying that an IEP Team is permitted, under certain circumstances,
to write goals that are intended to be achieved in less than one year.
Discussion: Section 300.320(a)(2)(i), consistent with section
614(d)(1)(A)(i)(II) of the Act, requires the IEP to include measurable
annual goals. Further, Sec. 300.320(a)(3)(i), consistent with section
614(d)(1)(A)(i)(III) of the Act, requires the IEP to include a
statement of how the child's progress toward meeting the annual goals
will be measured. The Act does not require goals to be written for each
specific discipline or to have outcomes and measures on a specific
assessment tool. Furthermore, to the extent that the commenters are
requesting that we mandate that IEPs include specific content not in
section 614(d)(1)(A)(i) of the Act, under section 614(d)(1)(A)(ii)(I),
we cannot interpret section 614 to require that additional content.
IEPs may include more than the minimum content, if the IEP Team
determines the additional content is appropriate.
Changes: None.
Comment: Some commenters recommended requiring related services in
every child's IEP. The commenters stated that related services are
necessary
[[Page 46663]]
to enhance the overall health and well-being of the child to prevent
secondary conditions; ensure that the child progresses towards
independent functioning and community integration; increase the child's
ability to function and learn in his or her educational environment;
develop social interaction skills to enhance a child's ability to
communicate, build relationships, and reinforce other positive behavior
skills; and further advance the child's ability to complete his or her
own educational requirements and goals.
Discussion: To require related services for every child with a
disability would be inconsistent with the concept of individualization
that has been part of the Act since its inception in 1975. Related
services are only required to the extent that such services are
necessary to enable the child to benefit from special education.
Related services, as with any other service in an IEP, are determined
on an individual basis by the child's IEP Team.
Changes: None.
Comment: Many commenters opposed the removal of benchmarks and
short-term objectives as required components of the IEP and recommended
that States and LEAs be permitted to require benchmarks and short-term
objectives for all children with disabilities. Many commenters
recommended that the regulations allow the IEP Team to determine
whether to include short-term objectives in a child's IEP to measure
progress in functional areas that are not measurable through other
means.
Discussion: Benchmarks and short-term objectives were specifically
removed from section 614(d)(1)(A)(i)(II) of the Act. However, because
benchmarks and short-term objectives were originally intended to assist
parents in monitoring their child's progress toward meeting the child's
annual goals, we believe a State could, if it chose to do so, determine
the extent to which short-term objectives and benchmarks would be used.
However, consistent with Sec. 300.199(a)(2) and sections 608(a)(2) and
614(d)(1)(A)(ii)(I) of the Act, a State that chooses to require
benchmarks or short-term objectives in IEPs in that State would have to
identify in writing to the LEAs located in the State and to the
Secretary that such rule, regulation, or policy is a State-imposed
requirement, which is not required by Part B of the Act or the Federal
regulations.
Changes: None.
Comment: A few commenters supported the requirement in Sec.
300.320(a)(2)(ii) for benchmarks or short-term objectives to be
developed for children who take alternate assessments aligned to
alternate achievement standards. However, a few commenters stated that
limiting short-term objectives to children who take alternate
assessments is not acceptable because the one percent limit on the
percentage of children who may take alternate assessments is arbitrary.
Discussion: The requirement to develop short-term objectives or
benchmarks covers all children with disabilities who are assessed using
alternate assessments aligned to alternate achievement standards,
consistent with section 614(d)(1)(A)(i)(I)(cc) of the Act. The one
percent cap referred to by the commenter is not a limit on the number
of children who may take an alternate assessment based on alternate
achievement standards. Rather, it is a limit on the number of
proficient and advanced scores that may be included in calculating
adequate yearly progress (AYP) under the ESEA, consistent with 34 CFR
Sec. 200.13(c)(1)(ii). As noted previously, the requirement to include
benchmarks or short-term objectives for all children with disabilities
was specifically removed from section 614(d)(1)(A)(i)(II) of the Act.
Changes: None.
Comment: One commenter stated that the IEP should not include
benchmarks for alternate achievement standards because this would be
teaching to the test and would lower expectations for children.
Discussion: Section 300.320(a)(2)(ii) requires benchmarks or short-
term objectives only for children with disabilities who take alternate
assessments aligned to alternate achievement standards. By ``teaching
to the test,'' we assume that the commenter believes that a benchmark
or short-term objective must be written for each alternate achievement
standard. There is no such requirement in the Act or these regulations.
Changes: None.
Comment: One commenter requested clarification on how schools
should determine which children in kindergarten through grade two must
have short-term objectives or benchmarks in their IEPs. Another
commenter requested clarification on how the requirements for
benchmarks or short-term objectives apply to preschoolers.
Discussion: Section 300.320(a)(2)(ii), consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act, requires an IEP to include
benchmarks or short-term objectives for children with disabilities who
take an alternate assessment aligned to alternate achievement
standards. This would apply to preschool children and children with
disabilities in kindergarten through grade two only if these children
are assessed in a State or districtwide assessment program and the
State has opted to develop an alternate assessment based on alternate
achievement standards. Under title I of the ESEA, States are only
required to assess children in grades 3 through 8 and once in high
school, so it is unlikely that even States that choose to develop
alternate achievement standards will include this age population in a
Statewide assessment program or develop an alternate achievement
standard for these children.
Changes: None.
Comment: One commenter recommended that the regulations require IEP
Team members, including the parents, to be involved in developing
short-term objectives.
Discussion: Sections 300.320 through 300.324 and section 614(d) of
the Act are clear that the IEP Team, which includes the parent, is
responsible for developing benchmarks or short-term objectives for
children who take alternate assessments aligned to alternate
achievement standards.
Changes: None.
Comment: One commenter recommended clarifying that goals and
objectives must be aligned with the State's alternate assessment.
Discussion: Section 612(a)(16)(C)(ii) of the Act requires alternate
assessments to be aligned with the State's challenging academic content
standards and academic achievement standards, and if the State has
adopted alternate academic achievement standards permitted under 34 CFR
Sec. 200.1(d), to measure the achievement of children with
disabilities against those standards. Section 614(d)(1)(A)(i)(II) of
the Act requires the IEP to include a statement of measurable annual
goals, including academic and functional goals, designed to meet the
child's needs that result from the child's disability to enable the
child to be involved in and make progress in the general education
curriculum. However, there is nothing in the Act that requires a
child's IEP goals to be aligned with the State's alternate assessment
based on alternate achievement standards. Additionally, for some
children, goals may be needed for activities that are not closely
related to a State's academic content and academic achievement
standards.
Changes: None.
Comment: A few commenters stated that the regulations should be
more specific about what must be included in an IEP goal if benchmarks
or short-term
[[Page 46664]]
objectives are not required in every child's IEP.
Discussion: The regulations are clear on the requirements for IEP
goals. Section 300.320(a)(2)(i), consistent with section
614(d)(1)(A)(i)(II) of the Act, requires that annual IEP goals be
measurable and designed to meet the child's needs that result from the
child's disability to enable the child to be involved in and make
progress in the general education curriculum, and to meet each of the
child's other educational needs that result from the child's
disability. We believe that these requirements will ensure that
progress toward achieving a child's annual goals can be objectively
monitored and measured. We do not believe that additional specificity
is needed.
Changes: None.
Comment: One commenter suggested requiring SEAs to ensure that LEAs
receive professional development in writing measurable goals and
effective methods of measuring progress toward achieving those goals.
Discussion: We do not believe that the requested requirement should
be included in the regulations. State and local officials are in the
best position to determine the training and professional development
needs of their personnel.
Changes: None.
Comment: One commenter recommended retaining current Sec. 300.350,
regarding the responsibilities of the public agency to provide special
education and related services to a child with a disability in
accordance with the child's IEP and to make a good-faith effort to
assist the child to achieve the goals and objectives or benchmarks in
the IEP.
Discussion: The requirement in current Sec. 300.350(a)(1),
regarding a public agency's responsibility to provide special education
and related services to a child with a disability in accordance with
the child's IEP, is unnecessary, because entitlement to FAPE under the
Act includes the provision of special education and related services in
accordance with an IEP. Paragraphs (a)(2) and (b) in current Sec.
300.350, regarding accountability for a child achieving his or her
goals, are unnecessary because other Federal laws, such as title I of
the ESEA, already provide sufficient motivation for agency effort to
assist children with disabilities in making academic progress. Current
Sec. 300.350(c), regarding the rights of parents to invoke due process
procedures if a parent feels that efforts are not being made to achieve
the IEP goals, is unnecessary because it merely provides explanatory
information regarding the due process procedures for parents and
children that are available in Sec. Sec. 300.500 through 520.
Changes: None.
Periodic Progress Reports (Sec. 300.320(a)(3)(ii))
Comment: A few commenters supported the language in Sec.
300.320(a)(3)(ii), which requires the IEP to include a description of
when periodic reports on the child's progress toward meeting the annual
goals will be provided. However, many commenters recommended retaining
current Sec. 300.347(a)(7), which requires parents of a child with a
disability to be informed about their child's progress at least as
often as parents of nondisabled children and for the report to include
information on the extent to which the child's progress is sufficient
to enable the child to achieve the goals by the end of the year.
One commenter recommended requiring progress reports to be provided
with enough time to allow changes in the IEP if the goals will not be
met by the end of the year. A few commenters recommended requiring the
reports to explain, in reasonable detail and with specific progress
measures, the extent to which the child is making progress on each of
the annual goals in the child's IEP. Another commenter recommended
requiring LEAs to report progress in measurable terms. The commenter
stated that many LEAs convert a measurable objective or goal into
subjective and vague language, such as ``adequate progress,'' which
does not provide objective measurements of achievement. Another
commenter recommended requiring progress reports to be specifically
linked to the measurable outcomes of a child's annual goals.
Numerous commenters requested that progress reports be provided
with school report cards. However, one commenter stated that not all
school districts have quarterly report cards, and, therefore, the
regulations should require progress reports to be issued at the same
time as other report cards in the district.
Discussion: Section 300.320(a)(3)(ii) follows the language in
section 614(d)(1)(A)(i)(III) of the Act and requires the IEP to include
a description of when periodic reports on the child's progress toward
meeting the annual goals will be provided. The Act does not require
report cards or quarterly report cards. Report cards and quarterly
report cards are used as examples in Sec. 300.320(a)(3)(ii) of when
periodic reports on the child's progress toward meeting the annual
goals might be provided. The specific times that progress reports are
provided to parents and the specific manner and format in which a
child's progress toward meeting the annual goals is reported is best
left to State and local officials to determine. In addition, under
section 614(d)(1)(A)(ii)(I) of the Act we cannot interpret section 614
of the Act to require additional information in a child's IEP that is
not specifically required by the Act.
Changes: None.
Statement of Special Education and Related Services (Sec.
300.320(a)(4))
Comment: One commenter recommended requiring the regular education
teacher to offer modifications for every assignment given to a child
with a disability.
Discussion: It would be inconsistent with the Act to implement the
commenter's recommendation. Consistent with Sec. 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act, the child's IEP Team determines
the special education and related services, and supplementary aids,
services, and other supports that are needed for the child to advance
appropriately toward meeting the child's annual goals.
Changes: None.
Comment: A significant number of commenters recommended the
regulations include a definition of ``peer-reviewed research,'' as used
in Sec. 300.320(a)(4). One commenter recommended that the definition
of peer-reviewed research be consistent with the work of the National
Research Council.
Discussion: ``Peer-reviewed research'' generally refers to research
that is reviewed by qualified and independent reviewers to ensure that
the quality of the information meets the standards of the field before
the research is published. However, there is no single definition of
``peer reviewed research'' because the review process varies depending
on the type of information to be reviewed. We believe it is beyond the
scope of these regulations to include a specific definition of ``peer-
reviewed research'' and the various processes used for peer reviews.
Changes: None.
Comment: Some commenters recommended revising Sec. 300.320(a)(4)
to require special education and related services, and supplementary
aids and services, to be based on ``evidenced-based practices'' rather
than ``peer-reviewed research.'' A few commenters recommended revising
Sec. 300.320(a)(4) to require special education and related services,
and supplementary aids and services to be based on peer-reviewed
research, evidenced-based practices,
[[Page 46665]]
and emerging best practices. Many commenters recommended clarifying the
meaning and intent of the phrase ``to the extent practicable.'' One
commenter recommended requiring all IEP Team meetings to include a
focused discussion on research-based methods and to provide parents
with prior written notice when the IEP Team refuses to provide
documentation of research-based methods.
Discussion: Section 300.320(a)(4) incorporates the language in
section 614(d)(1)(A)(i)(IV) of the Act, which requires that special
education and related services and supplementary aids and services be
based on peer-reviewed research to the extent practicable. The Act does
not refer to ``evidenced-based practices'' or ``emerging best
practices,'' which are generally terms of art that may or may not be
based on peer-reviewed research. Therefore, we decline to change Sec.
300.320(a)(4) in the manner suggested by the commenters. The phrase
``to the extent practicable,'' as used in this context, generally means
that services and supports should be based on peer-reviewed research to
the extent that it is possible, given the availability of peer-reviewed
research. We do not believe further clarification is necessary.
We decline to require all IEP Team meetings to include a focused
discussion on research-based methods or require public agencies to
provide prior written notice when an IEP Team refuses to provide
documentation of research-based methods, as we believe such
requirements are unnecessary and would be overly burdensome.
Changes: None.
Comment: One commenter recommended clear guidance on the
responsibilities of States, school districts, and school personnel to
provide special education and related services, and supplementary aids
and services that are based on peer-reviewed research. One commenter
requested clarification that the requirement for special education and
related services, and supplementary aids and services to be based on
peer-reviewed research does not mean that the service with the greatest
body of research is the service necessarily required for FAPE. Another
commenter requested that the regulations clarify that the failure of a
public agency to provide special education and related services, and
supplementary aids and services based on peer-reviewed research, does
not result in a denial of FAPE, and that the burden of proof is on the
moving party when the denial of FAPE is at issue.
Discussion: Section 612(d)(1)(A)(i)(IV) of the Act requires special
education and related services, and supplementary aids and services, to
be based on peer-reviewed research to the extent practicable. States,
school districts, and school personnel must, therefore, select and use
methods that research has shown to be effective, to the extent that
methods based on peer-reviewed research are available. This does not
mean that the service with the greatest body of research is the service
necessarily required for a child to receive FAPE. Likewise, there is
nothing in the Act to suggest that the failure of a public agency to
provide services based on peer-reviewed research would automatically
result in a denial of FAPE. The final decision about the special
education and related services, and supplementary aids and services
that are to be provided to a child must be made by the child's IEP Team
based on the child's individual needs.
With regard to the comment regarding the burden of proof when the
denial of FAPE is at issue, we have addressed this issue in the
Analysis of Comments and Changes section for subpart E.
Changes: None.
Comment: Several commenters recommended including a construction
clause in the regulations to clarify that no child should be denied
special education and related services, or supplementary aids and
services, based on a lack of available peer-reviewed research on a
particular service to be provided.
Discussion: We do not believe that the recommended construction
clause is necessary. Special education and related services, and
supplementary aids and services based on peer-reviewed research are
only required ``to the extent practicable.'' If no such research
exists, the service may still be provided, if the IEP Team determines
that such services are appropriate. A child with a disability is
entitled to the services that are in his or her IEP whether or not they
are based on peer-reviewed research. The IEP Team, which includes the
child's parent, determines the special education and related services,
and supplementary aids and services that are needed by the child to
receive FAPE.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that the reference to ``peer-reviewed research'' does not require an
IEP to include instructional methodologies. However, a few commenters
recommended that the regulations require all elements of a program
provided to a child, including program methodology, to be specified in
the child's IEP.
Discussion: There is nothing in the Act that requires an IEP to
include specific instructional methodologies. Therefore, consistent
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret
section 614 of the Act to require that all elements of a program
provided to a child be included in an IEP. The Department's
longstanding position on including instructional methodologies in a
child's IEP is that it is an IEP Team's decision. Therefore, if an IEP
Team determines that specific instructional methods are necessary for
the child to receive FAPE, the instructional methods may be addressed
in the IEP.
Changes: None.
Comment: A few commenters requested that the regulations require
programs provided to a child with a disability to be research-based
with demonstrated effectiveness in addressing the particular needs of a
child.
Discussion: While the Act clearly places an emphasis on practices
that are based on scientific research, there is nothing in the Act that
requires all programs provided to children with disabilities to be
research-based with demonstrated effectiveness in addressing the
particular needs of a child where not practicable. We do not believe
the recommended change should be made because, ultimately, it is the
child's IEP Team that determines the special education and related
services that are needed by the child in order for the child to receive
FAPE.
Changes: None.
Comment: A few commenters recommended that Sec. 300.320(a)(4)
specifically refer to assistive technology devices as supplementary
aids that must be provided to the child.
Discussion: It is not necessary to refer to assistive technology
devices in Sec. 300.320(a)(4). Section 300.324(a)(2)(v), consistent
with section 614(d)(3)(B)(v) of the Act, already requires the IEP Team
to consider whether the child needs assistive technology devices and
services.
Changes: None.
Participation With Nondisabled Children (Sec. 300.320(a)(5))
Comment: Many commenters recommended that Sec. 300.320(a)(5),
regarding the participation of children with disabilities with
nondisabled children, follow the language in section 614(d)(1)(A)(i)(V)
of the Act and use the term ``regular class'' instead of ``regular
educational environment.'' One commenter stated that parents, school
staff, and the community consider the ``regular class'' to be the place
where a
[[Page 46666]]
child's nondisabled peers go to school, while ``regular educational
environment'' is interpreted to be anywhere in the school, such as down
the hallway, in a separate wing of the school, or across the lunch
room. One commenter stated that the term ``regular education
environment'' could be interpreted to mean only special classes such as
art, music, and gym. A few commenters recommended defining ``regular
education environment'' to mean the participation of children with
disabilities with their nondisabled peers in the regular classroom and
other educational settings, including nonacademic settings.
Discussion: We agree that use of the term ``regular educational
environment'' may be misinterpreted. Therefore, we will revise Sec.
300.320(a)(5) to require the IEP to include an explanation of the
extent, if any, to which the child will not participate with
nondisabled children in the regular class.
Changes: We have changed Sec. 300.320(a)(5) to refer to the
``regular class'' instead of the ``regular education environment.''
Comment: One commenter recommended adding language to Sec.
300.320(a)(5) for preschool children with disabilities and stated that
``regular education environment'' should be replaced with ``settings
with typically developing peers.''
Discussion: Section 300.320(a)(5) follows the language in section
614(d)(1)(A)(i)(V) of the Act and applies to all children with
disabilities covered by Part B of the Act, which includes preschool
children under section 619 of the Act. We do not believe it is
necessary to change the regulations in the manner suggested by the
commenter because the ``regular class'' includes a preschool setting
with typically developing peers.
Changes: None.
Statewide and Districtwide Assessments (Sec. 300.320(a)(6))
Comment: A few commenters recommended requiring parents to be
informed in writing of the consequences of their child taking an
alternate assessment, including any effect on the child's eligibility
for graduation with a regular high school diploma. The commenters
stated that providing this information to parents is particularly
important in States that require passing a State exam in order to
obtain a regular high school diploma.
Discussion: Section 612(a)(16) of the Act requires that the State
(or, in the case of a districtwide assessment, the LEA) develop and
implement guidelines for the participation of children with
disabilities in alternate assessments, including alternate assessments
aligned to alternate achievement standards permitted under 34 CFR
200.1(d). Section 200.6(a)(2)(iii)(A)(2) of the ESEA title I
regulations requires States to inform parents that their child's
achievement will be measured against alternate achievement standards.
We acknowledge that these requirements do not specifically require
a public agency to inform parents of any potential consequences of a
child participating in an alternate assessment. The commenters'
recommendation will be considered along with other comments we have
received in response to the NPRM proposing changes to Sec. 300.160,
which was published in the Federal Register on December 15, 2005 (70 FR
74624). As noted elsewhere in this preamble, the final regulations for
Sec. 300.160, regarding participation in assessments, will be
published in a separate final rule.
Changes: None.
Comment: One commenter recommended defining ``appropriate
accommodations'' and ``individual appropriate accommodations'' as
accommodations that are needed to meet the child's unique needs that
maintain and preserve test validity, reliability, and technical testing
standards.
Discussion: Section 614(d)(1)(A)(i)(VI)(aa) of the Act requires
that the IEP include a statement of any individual appropriate
accommodations that are necessary to measure the academic and
functional performance of the child on State and districtwide
assessments. The requirements in proposed Sec. 300.160, published in
the Federal Register on December 15, 2005, provide additional
information about accommodations and the participation of children with
disabilities in State and districtwide assessments. As noted elsewhere
in this preamble, the final Sec. 300.160 will be published in a
separate final rule. We will consider the commenter's recommendation
along with other comments received in response to the NPRM proposing
changes to Sec. 300.160.
Changes: None.
Comment: One commenter recommended changing the word ``must'' in
Sec. 300.320(a)(6)(ii) to state that if an IEP Team determines that
the child will take an alternate assessment, the IEP ``will'' include a
statement of why the child cannot participate in the regular
assessment. The commenter stated that ``will'' is less coercive and
more in line with the consensus decision-making model of IEP Team
meetings.
Discussion: Generally, we have used the word ``must'' for
regulations that describe what a public agency must do and the word
``will'' when referring to what the IEP Team has determined a child
will do. While we understand the commenter's concern, we believe it is
unnecessary to change Sec. 300.320(a)(6)(ii).
Changes: None.
Comment: One commenter recommended that Sec. 300.320(a)(6) clarify
that a child with the most significant cognitive disabilities, who has
been determined by the IEP Team to be unable to make progress toward
the regular achievement standards even with the best instruction, will
be taught and assessed based on alternate achievement standards.
Discussion: It would be inappropriate to require a child with the
most significant cognitive disabilities to be taught and assessed based
on alternate achievement standards. Consistent with section
614(d)(1)(A)(i)(VI)(bb) of the Act, the child's IEP Team is responsible
for determining the particular assessment that is appropriate for a
child. Under Sec. 200.1(d) of the ESEA title I regulations, a State is
permitted, but not required, to adopt alternate achievement standards
and develop an alternate assessment based on those standards for
children with the most significant cognitive disabilities. There is no
requirement under the Act or the ESEA that a State develop an alternate
assessment based on alternate achievement standards.
Changes: None.
Comment: One commenter stated that Sec. 300.320(a)(6) should
include information about alternate assessments because there will be
children who will not be successful with generic accommodations.
Discussion: Section 612(a)(16)(C) of the Act provides information
regarding alternate assessments and the requirements for alternate
assessments under the Act. As noted elsewhere in this preamble, the
final regulations for Sec. 300.160, which will incorporate the
requirements in section 612(a)(16) of the Act and provide further
clarification regarding the participation of children with disabilities
in assessments, will be published in a separate document. We will
consider the commenter's recommendation along with other comments
received in response to the NPRM proposing changes to Sec. 300.160.
Changes: None.
Comment: One commenter suggested revising Sec. 300.320(a)(6)(i),
which requires the IEP to include a statement of any individual
appropriate accommodations that are necessary to
[[Page 46667]]
``measure'' the academic and functional performance of the child on
State and districtwide assessments. The commenter recommended revising
the statement to require the IEP to include a statement of any
individual appropriate accommodations that are necessary to allow the
child to ``participate'' in assessments.
Discussion: To change the regulation in the manner suggested by the
commenter would be inconsistent with the Act. Section 300.320(a)(6)(i)
reflects the language in section 614(d)(1)(A)(i)(VI)(aa) of the Act and
requires accommodations that are necessary to measure a child's
performance. Accommodations that allow a child to ``participate'' in
assessments could include accommodations that invalidate the child's
test score, thereby resulting in an assessment that does not
``measure'' a child's performance.
Changes: None.
Initiation, Frequency, Location, and Duration of Services (Sec.
300.320(a)(7))
Comment: One commenter recommended clarifying that the term
``duration'' in Sec. 300.320(a)(7), regarding services and
modifications in the IEP, refers to the length of a particular service
session and not the entire IEP.
Discussion: The meaning of the term ``duration'' will vary,
depending on such things as the needs of the child, the service being
provided, the particular format used in an IEP, and how the child's day
and IEP are structured. What is required is that the IEP include
information about the amount of services that will be provided to the
child, so that the level of the agency's commitment of resources will
be clear to parents and other IEP Team members. The amount of time to
be committed to each of the various services to be provided must be
appropriate to the specific service, and clearly stated in the IEP in a
manner that can be understood by all involved in the development and
implementation of the IEP.
Changes: None.
Comment: One commenter requested that the regulations require the
IEP to include information about the person(s) providing the services,
rather than just a listing of the services.
Discussion: The Act does not require the IEP to include information
about the specific person(s) providing the services. Section
614(d)(1)(A)(ii)(I) of the Act precludes the Department from
interpreting section 614 of the Act to require public agencies to
include information in the IEP beyond what is specifically required by
the Act.
Changes: None.
Transition Services (Sec. 300.320(b))
Comment: Many commenters disagreed with changing the age at which
transition services must be provided to a child with a disability from
14 years to 16 years. One commenter recommended that transition
services begin at age 13. Another commenter recommended that transition
services begin before high school, because if there is a choice of high
schools, transition goals may be a determining factor in the selection
process. A few commenters requested that the regulations clarify that
States may continue to begin transition services with the first IEP
after the child turns age 14. Some commenters recommended that
transition begin two to four full school years before the child is
expected to graduate because some children may exit school at age 17.
Numerous commenters recommended that the regulations clarify that
States have discretion to require transition services to begin before
age 16 for all children in the State. However, a few commenters
recommended removing the phrase ``or younger if determined appropriate
by the IEP Team'' in Sec. 300.320(b) because the language is not in
the Act and promotes additional special education services.
A few commenters recommended that the regulations require
transition planning to begin earlier than age 16 if necessary for the
child to receive FAPE. Other commenters recommended clarifying that, in
order for transition services to begin by age 16, transition
assessments and other pre-planning needs that would facilitate movement
to post-school life must be completed prior to the child's 16th
birthday. One commenter recommended requiring transition planning to
begin no later than the child's freshman year in high school and that
this planning include selecting assessment instruments and completing
assessments that will lead to the development of transition goals and
objectives in the child's IEP.
Discussion: Section 614(d)(1)(A)(i)(VIII) of the Act requires that
transition services begin no later than the first IEP to be in effect
when the child turns 16. Because IEP Team decisions must always be
individualized, we have included the phrase ``or younger if determined
appropriate by the IEP Team'' in Sec. 300.320(b).
The Act does not require transition planning or transition
assessments, as recommended by some commenters. Therefore, consistent
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret
section 614 of the Act to require that IEPs include this information
because it is beyond what is specifically required in the Act.
The Department believes that a State could require transition
services, if it chose to do so, to begin before age 16 for all children
in the State. However, consistent with Sec. 300.199(a)(2) and section
608(a)(2) of the Act, a State that chooses to require transition
services before age 16 for all children would have to identify in
writing to its LEAs and to the Secretary that such rule, regulation, or
policy is a State-imposed requirement that is not required by Part B of
the Act and Federal regulations.
Changes: None.
Comment: A few commenters recommended that Sec. 300.320(b) clarify
that the child is a participating IEP Team member and that the IEP Team
is required to consider the child's preferences in developing
transition goals and services.
Discussion: The clarification requested is not needed because Sec.
300.321(b)(1) already requires the public agency to invite a child with
a disability to attend the child's IEP Team meeting, if a purpose of
the meeting is to consider the child's postsecondary goals and the
transition services needed to assist the child to reach those goals. In
addition, Sec. 300.321(b)(2) requires the public agency to take steps
to ensure that the child's preferences and interests are considered, if
the child does not attend the IEP Team meeting. We believe that this is
sufficient clarification that, for the purposes mentioned by the
commenter, the child is a participating IEP Team member.
Changes: None.
Comment: A few commenters requested that the regulations clarify
whether ``transition assessments'' are formal evaluations or competency
assessments. One commenter stated that transition assessments should be
different for a college-bound child with a disability than for a child
with severe disabilities whose future is a group home.
Discussion: We do not believe the requested clarification is
necessary because the specific transition assessments used to determine
appropriate measurable postsecondary goals will depend on the
individual needs of the child, and are, therefore, best left to States
and districts to determine on an individual basis.
Changes: None.
Comment: One commenter requested clarification of the term
``postsecondary goals.'' Another commenter recommended defining
``postsecondary
[[Page 46668]]
goals'' in the definition section of these regulations.
Discussion: We do not believe it is necessary to include a
definition of ``postsecondary goals'' in the regulations. The term is
generally understood to refer to those goals that a child hopes to
achieve after leaving secondary school (i.e., high school).
Changes: None.
Comment: One commenter requested clarification regarding whether
Sec. 300.320(b)(1) requires measurable postsecondary goals in each of
the areas of training, education, employment, and, independent living
skills.
Discussion: Beginning not later than the first IEP to be in effect
when the child turns 16 years of age, section 614(d)(1)(A)(i)(VIII)(aa)
of the Act requires a child's IEP to include measurable postsecondary
goals in the areas of training, education, and employment, and, where
appropriate, independent living skills. Therefore, the only area in
which postsecondary goals are not required in the IEP is in the area of
independent living skills. Goals in the area of independent living are
required only if appropriate. It is up to the child's IEP Team to
determine whether IEP goals related to the development of independent
living skills are appropriate and necessary for the child to receive
FAPE.
Changes: None.
Comment: Some commenters recommended that the regulations retain
the requirement in current Sec. 300.347(b)(1) that requires IEPs to
include a statement of the transition service needs of the child under
applicable components of the child's IEP that focus on the child's
courses of study (such as participation in advanced-placement courses
or a vocational education program).
Discussion: The requirement referred to by the commenter is already
in the regulations. Section 300.320(b)(2) includes a reference to
``courses of study'' as part of transition services, consistent with
section 614(d)(1)(A)(i)(VIII)(bb) of the Act. The examples in current
Sec. 300.347(b)(2) (i.e., advanced placement course or a vocational
education program) are not included in Sec. 300.320(b)(2) because we
do not believe they are necessary to understand and implement the
requirement.
Changes: None.
Comment: Several commenters recommended that the regulations
explicitly require transition services to include vocational and career
training through work-study and documentation of accommodations needed
in the workplace.
Discussion: The Act does not require IEPs to include vocational and
career training or documentation of workplace accommodations.
Consistent with section 614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to require IEPs to include information
beyond what is specifically required in the Act. It is up to each
child's IEP Team to determine the transition services that are needed
to meet the unique transition needs of the child.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that schools can use funds provided under Part B of the Act to support
children in transitional programs on college campuses and in community-
based settings.
Discussion: We do not believe that the clarification requested by
the commenters is necessary to add to the regulations because, as with
all special education and related services, it is up to each child's
IEP Team to determine the special education and related services that
are needed to meet each child's unique needs in order for the child to
receive FAPE. Therefore, if a child's IEP Team determines that a
child's needs can best be met through participation in transitional
programs on college campuses or in community-based settings, and
includes such services on the child's IEP, funds provided under Part B
of the Act may be used for this purpose.
Changes: None.
Comment: One commenter recommended more accountability for
transition services.
Discussion: The Act contains significant changes to the monitoring
and enforcement requirements under Part B of the Act. Section 300.600,
consistent with section 616(a) of the Act, requires the primary focus
of monitoring to be on improving educational results and functional
outcomes for children with disabilities. The provisions in section
616(a) and (b)(2)(C)(ii) of the Act set forth the responsibility of
States to monitor the implementation of the Act, enforce the Act, and
annually report on performance of the State and each LEA.
Section 300.600(c), consistent with section 616(a)(3) of the Act,
requires States to measure performance in monitoring priority areas
using quantifiable indicators and such qualitative indicators as are
needed to adequately measure performance. Section 300.601 reflects
statutory language in section 616(b) of the Act and requires States to
have a performance plan that evaluates their efforts to implement the
requirement and purposes of the Act. Transition services are
specifically being addressed in State performance plans. We believe
that these changes to the monitoring and enforcement requirements will
ensure that States and LEAs are held accountable for the transition
services they provide.
Changes: None.
Comment: One commenter requested that the regulations be revised to
include an affirmative statement that transition services can be used
to drive the IEP for the child.
Discussion: It would be inappropriate to include such a requirement
in these regulations because, while section 614(d)(1)(A)(i)(VIII) of
the Act includes transition services in a child's IEP, there is no
suggestion that it be the only component or the component that governs
a child's IEP.
Changes: None.
Transfer of Rights at Age of Majority (Sec. 300.320(c))
Comment: One commenter recommended that the regulations specify how
the child is to be informed of the transfer of rights. The commenter
also recommended that the regulations require public agencies to
explain to the child the rights that will transfer to the child on
reaching the age of majority.
Discussion: The specific manner in which a child is informed about
his or her rights is best left to States, districts, and IEP Teams to
decide, based on their knowledge of the child and any unique local or
State requirements. Section 300.320(c), consistent with section
614(d)(1)(A)(i)(VIII)(cc) of the Act, already requires the IEP to
include a statement that the child has been informed of the child's
rights under Part B of the Act, if any, that will transfer to the child
on reaching the age of majority. We do not believe further
clarification is necessary.
Changes: None.
Comment: One commenter stated that Sec. 300.320(c) is redundant
with Sec. 300.520.
Discussion: Sections 300.320 and 300.520 are related, but not
redundant. Section 300.320(c) requires the IEP to include a statement
that the child has been informed of the child's rights under Part B of
the Act that will transfer to the child on reaching the age of
majority. Section 300.520 provides additional information about the
transfer of rights as part of the procedural safeguards for parents and
children under the Act.
Changes: None.
[[Page 46669]]
Construction (Sec. 300.320(d))
Comment: One commenter stated that Sec. 300.320(d)(2) constrains
States and LEAs from adding elements to the IEP and misses the
opportunity to make sense of the one percent and two percent rules
under the ESEA. One commenter recommended that the regulations
explicitly state that nothing limits a State from adding its own
mandatory components of the IEP, especially given the purpose and
intent to align the Act with the ESEA.
Discussion: There is nothing in the Act that limits States and LEAs
from adding elements to the IEP, so long as the elements are not
inconsistent with the Act or these regulations, and States do not
interpret the Act to require these additional elements. Section
300.320(d), consistent with section 614(d)(1)(A)(ii)(I) of the Act,
does not prohibit States or LEAs from requiring IEPs to include
information beyond that which is explicitly required in section 614 of
the Act. However, if a State requires IEPs to include information
beyond that which is explicitly required in section 614 of the Act, the
State must identify in writing to its LEAs and the Secretary that it is
a State-imposed requirement and not one based on the Act or these
regulations, consistent with Sec. 300.199(a)(2) and section 608(a)(2)
of the Act.
Changes: None.
IEP Team (Sec. 300.321)
Comment: One commenter recommended that the regulations clarify
whether regular education teachers are required at every IEP Team
meeting.
Discussion: Consistent with Sec. 300.321(a)(2) and section
614(d)(1)(B)(ii) of the Act, a regular education teacher is a required
member of an IEP Team if the child is, or may be, participating in the
regular education environment. In such cases, the regular education
teacher would be expected to attend each IEP Team meeting, unless the
regular education teacher has been excused from attending a meeting,
pursuant to Sec. 300.321(e) and section 614(d)(1)(C) of the Act. We do
not believe further clarification is necessary.
Changes: None.
Comment: Many comments were received recommending that the IEP Team
include additional members beyond those required by Sec. 300.321(a).
Several commenters stated that occupational therapists should be part
of the IEP Team because of their unique training in assisting children
to learn in changing environments. A few commenters recommended that a
recreation therapist or specialist be included on the IEP Team. Other
commenters stated that a practitioner skilled in assistive technology
should be included. Several commenters recommended that the IEP Team
include individuals with knowledge or special expertise regarding the
related services needs of a child.
Some commenters stated that individuals from the child welfare
system should be included as members of the IEP Team and should be
invited to attend IEP Team meetings when the purpose of the meeting is
to consider transition services for a child who is a ward of the State
or in the custody of the child welfare agency. The commenters
recommended that the IEP Team should specifically include any of the
following individuals: The child's attorney or guardian ad litem, court
appointed special advocate, caseworker, foster parent, caretaker, or
judge.
Discussion: It would be inappropriate to require that individuals
with specific professional knowledge or qualifications attend all IEP
Team meetings. These decisions should be made on a case-by-case basis
in light of the needs of a particular child. Section 300.321(a)(6),
consistent with section 614(d)(1)(B)(vi) of the Act, already allows
other individuals who have knowledge or special expertise regarding the
child, including related services personnel, as appropriate, to be
included as members of a child's IEP Team at the discretion of the
parent or the agency. Therefore, we decline to make the changes
recommended by the commenters. However, it should be noted that if a
public agency wishes to invite officials from another agency, such as
officials of the child welfare agency that are not representing the
child, the public agency must obtain parental consent for the
individual to participate in the IEP Team meeting because confidential
information about the child from the child's education records would be
shared at the meeting.
Changes: None.
Comment: A few commenters recommended that the IEP Team include a
representative of the private school or facility when an IEP is
developed for a child in a private school.
Discussion: We believe the commenters' concerns are already
addressed in the regulations. Section 300.325(a) requires that, before
a public agency places a child with a disability in, or refers a child
to, a private school or facility, the agency must initiate and conduct
a meeting to develop an IEP for the child and must ensure that a
representative of the private school or facility attends the meeting.
Changes: None.
Comment: A few commenters stated that the IEP Team should include
other persons whose presence on the IEP Team would be beneficial to the
child, regardless of their academic qualifications. Other commenters
recommended that the IEP Team include credentialed and licensed
personnel, even though it is important to recognize that people who are
not credentialed have important roles to play.
Discussion: We believe the commenters' concerns are already
addressed. Section 614(d)(1)(B)(vi) of the Act states that other
individuals who have knowledge or special expertise regarding the child
may be included as members of a child's IEP Team at the discretion of
the parent or the agency. Consistent with Sec. 300.321(c), the party
(parents or public agency) who invites the individual to be a member of
the IEP Team determines the knowledge or special expertise of such
individual.
Changes: None.
Comment: Several commenters recommended that the IEP Team include
an IEP manager who would communicate with IEP members not in
attendance, ensure that the IEP requirements are met, and assume
responsibility for implementing the IEP.
Discussion: The Act does not require an IEP Team manager as a part
of the IEP Team. While having one individual manage the provision of
services under the IEP might be a good practice in particular
circumstances, we decline to require IEP Team managers for all IEPs
because, in many cases, it would be unnecessary. In addition, to ensure
that all IEP Team members are aware of their responsibilities regarding
the implementation of a child's IEP, Sec. 300.323(d) requires that the
child's IEP be accessible to each regular education teacher, special
education teacher, related services provider, and any other service
provider who is responsible for its implementation.
Changes: None.
Comment: A few commenters recommended that the special education
teacher on a child's IEP Team should be required to have expertise in
the area of the child's disability. The commenters stated that this is
especially important for children with dyslexia and children with other
learning disabilities.
A few commenters recommended that the child's future teacher be
required to attend an end-of-the-year IEP Team meeting.
[[Page 46670]]
Discussion: Section 612(d)(1)(B)(iii) of the Act requires that not
less than one special education teacher of the child (or where
appropriate, not less than one special education provider of the child)
be included on the IEP Team. Decisions as to which particular
teacher(s) or special education provider(s) are members of the IEP Team
and whether IEP Team meetings are held at the end of the school year or
some other time, are best left to State and local officials to
determine, based on the needs of the child.
Changes: None.
Comment: A few commenters recommended defining ``regular education
environment'' in Sec. 300.321(a)(2) to mean the regular classroom and
the non-academic environment. A few commenters requested that the
regulations require children to be in the regular classroom and in
nonacademic activities with their nondisabled peers.
Discussion: It is not necessary to define ``regular education
environment'' or to repeat that children with disabilities should be
included in the regular classroom and in nonacademic activities with
their nondisabled peers. The LRE requirements in Sec. Sec. 300.114
through 300.120, consistent with section 612(a)(5) of the Act, are
clear that each public agency must ensure that, to the maximum extent
appropriate, children with disabilities are educated with children who
are nondisabled. Section 300.117, consistent with section 612(a)(5) of
the Act, is clear that this includes nonacademic and extracurricular
services and activities.
Changes: None.
Comment: A few commenters stated that a special education provider
should be allowed to substitute for a special education teacher only
when the child does not have a special education teacher because the
role of a special education teacher is different from the role of a
special education provider.
Discussion: The recommended change is not appropriate. Section
300.321(a)(2) incorporates the language in section 614(d)(1)(B)(iii) of
the Act and requires the IEP Team to include not less than one special
education teacher, or where appropriate, not less than one special
education provider. The special education provider may substitute when
there is no special education teacher. However, the Act leaves open the
possibility that there may be other appropriate circumstances when a
special education provider could substitute for a special education
teacher. These are decisions best left to State and local officials.
Changes: None.
Comment: A few commenters recommended that the regulations define
``special education teacher'' and ``special education provider,'' as
used in Sec. 300.321(a)(3).
Discussion: Section 300.321(a)(3), consistent with section
614(d)(1)(B)(iii) of the Act, requires that the IEP Team include not
less than one special education teacher, or where appropriate, not less
than one special education provider of the child. This is not a new
requirement. The same requirement is in current Sec. 300.344(a)(3). As
noted in Attachment I of the March 12, 1999 final regulations, the
special education teacher or provider who is a member of the child's
IEP Team should be the person who is, or will be, responsible for
implementing the IEP. For example, if the child's disability is a
speech impairment, the special education teacher or special education
provider could be the speech language pathologist. We do not believe
that further clarification is needed.
Changes: None.
Comment: Many commenters recommended that the regulations require
the IEP Team to include a representative of the public agency who has
the authority to commit resources. One commenter stated that the
failure of this individual to attend an IEP Team meeting lengthens the
decision-making process, delays services, and removes parents from
equal participation in an IEP Team meeting.
Discussion: Section 300.321(a)(4) incorporates the language in
section 614(d)(1)(B)(iv) of the Act and requires the IEP Team to
include a representative of the public agency who is qualified to
provide or supervise the provision of specially designed instruction to
meet the unique needs of children with disabilities; is knowledgeable
about the general education curriculum; and is knowledgeable about the
availability of LEA resources.
A public agency may determine which specific staff member will
serve as the agency representative in a particular IEP Team meeting, so
long as the individual meets these requirements. It is important,
however, that the agency representative have the authority to commit
agency resources and be able to ensure that whatever services are
described in the IEP will actually be provided. However, we do not need
to regulate in the manner suggested, as the public agency will be bound
by the IEP that is developed at an IEP Team meeting.
Changes: None.
Comment: One commenter recommended that the IEP Team include an
individual who is qualified to conduct individual diagnostic
assessments.
Discussion: Section 300.321(a)(5) follows the language in section
614(d)(1)(B)(v) of the Act and requires the IEP Team to include an
individual who can interpret the instructional implications of
evaluation results. An individual who is qualified to conduct a
particular assessment does not necessarily have the skills or knowledge
to assist the IEP Team in determining the special education, related
services, and other supports that are necessary in order for the child
to receive FAPE. Therefore, we do not believe that it is necessary to
require that the IEP Team also include an individual who can conduct
diagnostic assessments.
Changes: None.
Comment: A few commenters expressed concern that IEP Team meetings
are being used by parent advocates to train parents of other children,
and by attorneys to train their associates about the school's IEP
process. In order to prevent this, these commenters stated that the
regulations should identify the specific knowledge and expertise that
an individual must have to be included on an IEP Team. One commenter
expressed concern about confidentiality rights; the lack of credentials
for advocates; and the lack of authority for a parent or school
district to prevent advocates from participating in an IEP Team
meeting.
Discussion: Section 614(d)(1)(B)(vi) of the Act allows other
individuals who have knowledge or special expertise regarding the child
to be included on a child's IEP Team. Section 300.321(c) provides that
the determination of the knowledge or special expertise of these
individuals must be made by the party (parents or public agency) who
invited the individual to be a member of the IEP Team. We continue to
believe that this determination is best left to parents and the public
agency. We also believe that it would be inappropriate to regulate on
the specific knowledge and expertise that an individual must have to be
included on an IEP Team because it would be burdensome for both parents
and public agencies.
Additionally, nothing in the Act prevents parents from consenting
to have an observer who is not a member of the IEP Team present at the
meeting, as the parent can consent to the sharing of confidential
information about the child. With that exception, it should be
emphasized that a person who does not have knowledge and special
expertise regarding the child and who is not requested to be present at
the IEP Team meeting by the parent or public agency would not be
permitted to be a member
[[Page 46671]]
of the IEP Team or be permitted to attend the IEP Team meeting as an
observer.
Changes: None.
Comment: A few commenters recommended changing Sec. 300.321(a)(7)
to clarify that a parent has the right to bring their child to any or
all IEP Team meetings at any age.
Discussion: We do not believe that the additional clarification
requested by the commenters is necessary. Section 614(d)(1)(B)(vii) of
the Act clearly states that the IEP Team includes the child with a
disability, whenever appropriate. Generally, a child with a disability
should attend the IEP Team meeting if the parent decides that it is
appropriate for the child to do so. If possible, the agency and parent
should discuss the appropriateness of the child's participation before
a decision is made, in order to help the parent determine whether or
not the child's attendance would be helpful in developing the IEP or
directly beneficial to the child, or both.
Until the child reaches the age of majority under State law, unless
the rights of the parent to act for the child are extinguished or
otherwise limited, only the parent has the authority to make
educational decisions for the child under Part B of the Act, including
whether the child should attend an IEP Team meeting.
Changes: None.
Transition Services Participants (Sec. 300.321(b))
Comment: A few commenters recommended requiring the public agency
to invite the child with a disability to attend the child's IEP Team
meeting no later than age 16 or at least two years prior to the child's
expected graduation, whichever comes first.
Discussion: The commenters' concerns are addressed in Sec.
300.321(b), which requires the public agency to invite a child with a
disability to attend the child's IEP Team meeting if a purpose of the
meeting will be the consideration of the postsecondary goals for the
child and the transition services needed to assist the child in
reaching the child's postsecondary goals. Furthermore, a child's IEP
must include transition services beginning not later than the first IEP
to be in effect when the child turns 16, or younger, if determined
appropriate by the IEP Team, consistent with Sec. 300.320(b).
Changes: None.
Comment: One commenter requested that the regulations clarify that
parents and children are not required to use the transition services
offered by agencies that the school invites to the IEP Team meeting.
Discussion: There is nothing in the Act or these regulations that
requires a parent or child to participate in transition services that
are offered by agencies that the public agency has invited to
participate in an IEP Team meeting. However, if the IEP Team determines
that such services are necessary to meet the needs of the child, and
the services are included on the child's IEP, and the parent (or a
child who has reached the age of majority) disagrees with the services,
the parent (or the child who has reached the age of majority) can
request mediation, file a due process complaint, or file a State
complaint to resolve the issue. We do not believe further clarification
in the regulations is necessary.
Changes: None.
Comment: A few commenters recommended requiring the public agency
to include all the notice requirements in Sec. 300.322(b) with the
invitation to a child to attend his or her IEP Team meeting. The
commenters stated that children need to be fully informed about the
details and purpose of the meeting in order for them to adequately
prepare and, therefore, should have the same information that is
provided to other members of the IEP Team.
Discussion: We decline to make the suggested change. We believe it
would be overly burdensome to require a public agency to include all
the notice requirements in Sec. 300.322(b) with an invitation to a
child to attend his or her IEP Team meeting, particularly because the
information is provided to the child's parents who can easily share
this information with the child. However, when a child with a
disability reaches the age of majority under State law, the public
agency must provide any notice required by the Act to both the child
and the parents, consistent with Sec. 300.520 and section 615(m)(1)(A)
of the Act.
Changes: None.
Comment: One commenter requested clarification regarding the public
agency's responsibility to invite a child who has not reached the age
of majority to the child's IEP Team meeting when a parent does not want
the child to attend.
Discussion: Section 300.321(b)(1) requires the public agency to
invite a child with a disability to attend the child's IEP Team meeting
if a purpose of the meeting will be the consideration of the
postsecondary goals for the child and the transition services needed to
assist the child in reaching those goals, regardless of whether the
child has reached the age of majority. However, until the child reaches
the age of majority under State law, unless the rights of the parent to
act for the child are extinguished or otherwise limited, only the
parent has the authority to make educational decisions for the child
under Part B of the Act, including whether the child should attend an
IEP Team meeting.
Changes: None.
Comment: A few commenters expressed concern that Sec. 300.321(b)
does not require children to have sufficient input as a member of the
IEP Team and recommended requiring the IEP Team to more strongly
consider the child's preferences and needs.
Discussion: Section 300.321(a)(7) includes the child as a member of
the IEP Team, when appropriate, and Sec. 300.321(b)(1) requires the
public agency to invite the child to the child's IEP Team meeting when
the purpose of the meeting will be the consideration of the
postsecondary goals for the child and the transition services needed to
assist the child in reaching those goals. Further, if the child does
not attend the IEP Team meeting, Sec. 300.321(b)(2) requires the
public agency to take other steps to ensure that the child's
preferences and interests are considered. We believe this is sufficient
to ensure that the child's preferences and needs are considered and do
not believe that any changes to Sec. 300.321(b) are necessary.
Changes: None.
Comment: One commenter stated that the requirements in Sec.
300.321(b), regarding transition services participants, are not in the
Act, are too rigid, and should be modified to provide more flexibility
for individual children.
Discussion: We believe that, although not specified in the Act, the
requirements in Sec. 300.321(b) are necessary to assist children with
disabilities to successfully transition from high school to employment,
training, and postsecondary education opportunities. We believe it is
critical for children with disabilities to be involved in determining
their transition goals, as well as the services that will be used to
reach those goals. Section 300.321(b), therefore, requires the public
agency to invite the child to attend IEP Team meetings in which
transition goals and services will be discussed. If the child does not
attend the IEP Team meeting, Sec. 300.321(b)(2) requires the public
agency to take other steps to ensure that the child's preferences and
interests are considered.
We also believe that, when it is likely that a child will be
involved with other
[[Page 46672]]
agencies that provide or pay for transition services or postsecondary
services, it is appropriate (provided that the parent, or a child who
has reached the age of majority, consents) for representatives from
such agencies to be invited to the child's IEP Team meeting. The
involvement and collaboration with other public agencies (e.g.,
vocational rehabilitation agencies, the Social Security Administration)
can be helpful in planning for transition and in providing resources
that will help children when they leave high school. We believe that
children with disabilities will benefit when transition services under
the Act are coordinated with vocational rehabilitation services, as
well as other supports and programs that serve all children moving from
school to adult life. Therefore, we decline to change the requirements
in Sec. 300.321(b).
Changes: None.
Comment: One commenter stated that Sec. 300.321(b)(1), which
requires the public agency to invite the child to an IEP Team meeting
when transition is to be considered, duplicates Sec. 300.321(a)(7),
which requires a child with a disability to be invited to his or her
IEP Team meeting, whenever possible.
Discussion: These two provisions are not redundant. Section
300.321(a)(7) requires the public agency to include the child with a
disability, when appropriate (not ``whenever possible,'' as stated by
the commenter), in the child's IEP Team meeting, and, thus, provides
discretion for the parent and the public agency to determine when it is
appropriate to include the child in the IEP Team meeting. Section
300.321(b), on the other hand, requires a public agency to invite a
child to attend an IEP Team meeting when the purpose of the meeting
will be to consider the postsecondary goals for the child and the
transition services needed to assist the child to reach those goals.
The Department believes it is important for a child with a disability
to participate in determining the child's postsecondary goals and for
the IEP Team to consider the child's preferences and interests in
determining those goals.
Changes: None.
Comment: Many commenters recommended removing the requirement in
Sec. 300.321(b)(3) for parental consent (or consent of a child who has
reached the age of majority) before inviting personnel from
participating agencies to attend an IEP Team meeting because it is
burdensome, may reduce the number of agencies participating in the IEP
Team meeting, and may limit the options for transition services for the
child. The commenters stated that this consent is unnecessary under
FERPA, and inconsistent with Sec. 300.321(a)(6), which allows the
parent or the agency to include other individuals in the IEP Team who
have knowledge or special expertise regarding the child.
Discussion: Section 300.321(b)(3) was included in the regulations
specifically to address issues related to the confidentiality of
information. Under section 617(c) of the Act the Department must ensure
the protection of the confidentiality of any personally identifiable
data, information, and records collected or maintained by the Secretary
and by SEAs and LEAs pursuant to Part B of the Act, irrespective of the
requirements under FERPA. We continue to believe that a public agency
should be required to obtain parental consent (or the consent of a
child who has reached the age of majority) before inviting
representatives from other participating agencies to attend an IEP Team
meeting, consistent with Sec. 300.321(b)(3).
We do not believe that the requirements in Sec. 300.321(b)(3) are
inconsistent with Sec. 300.321(a)(6). Section 300.321(a)(6) permits
other individuals who have knowledge or special expertise regarding the
child to attend the child's IEP Team meeting at the discretion of the
parent or the public agency. It is clear that in Sec. 300.321(b)(3),
the individuals invited to the IEP Team meeting are representatives
from other agencies who do not necessarily have special knowledge or
expertise regarding the child. In these situations, we believe that
consent should be required because representatives of these agencies
are invited to participate in a child's IEP Team meeting only because
they may be providing or paying for transition services. We do not
believe that representatives of these agencies should have access to
all the child's records unless the parent (or the child who has reached
the age of majority) gives consent for such a disclosure. Therefore, we
believe it is important to include the requirement for consent in Sec.
300.321(b)(3).
Changes: None.
Comment: Some commenters recommended removing the phrase, ``to the
extent appropriate'' in Sec. 300.321(b)(3) and requiring public
agencies to invite a representative of any participating agency that is
likely to be responsible for providing or paying for transition
services to the IEP Team meeting.
Discussion: We disagree with the recommended change because the
decision as to whether to invite a particular agency to participate in
a child's IEP Team meeting is a decision that should be left to the
public agency and the parent (or the child with a disability who has
reached the age of majority).
Changes: None.
Comment: Numerous commenters recommended retaining current Sec.
300.344(b)(3)(ii), which requires the public agency to take steps to
ensure the participation of invited agencies in the planning of any
transition services when the agencies do not send a representative to
the IEP Team meeting. These commenters stated that the participation of
other agencies is vital to ensuring that the child receives the
necessary services. One commenter requested that the regulations
clarify that, aside from inviting other agencies to attend a child's
IEP Team meeting, public agencies have no obligation to obtain the
participation of agencies likely to provide transition services.
Discussion: The Act has never given public agencies the authority
to compel other agencies to participate in the planning of transition
services for a child with a disability, including when the requirements
in Sec. 300.344(b)(3)(ii) were in effect. Without the authority to
compel other agencies to participate in the planning of transition
services, public agencies have not been able to meet the requirement in
current Sec. 300.344(b)(3)(ii) to ``ensure'' the participation of
other agencies in transition planning. Therefore, while we believe that
public agencies should take steps to obtain the participation of other
agencies in the planning of transition services for a child, we believe
it is unhelpful to retain current Sec. 300.344(b)(3)(ii).
Changes: None.
Comment: A few commenters recommended that the regulations require
the public agency to put parents in touch with agencies providing
transition services.
Discussion: We do not believe it is necessary to regulate to
require public agencies to put parents in touch with agencies providing
transition services. As a matter of practice, public agencies regularly
provide information to children and parents about transition services
during the course of planning and developing transition goals and
determining the services that are necessary to meet the child's
transition goals.
Changes: None.
Comment: One commenter asked whether a parent could exclude an
individual from the IEP Team.
Discussion: A parent can refuse to provide consent only for the
public
[[Page 46673]]
agency to invite other agencies that are likely to be responsible for
providing or paying for transition services. A parent may not exclude
any of the required members of the IEP Team.
Changes: None.
IEP Team Attendance (Sec. 300.321(e))
Comment: We received many comments from individuals expressing
concern about allowing IEP Team members to be excused from attending an
IEP Team meeting. A few commenters recommended that the regulations
require all IEP Team members to attend all IEP Team meetings without
exception. One commenter stated that excusing members from attending
IEP Team meetings interrupts the flow of the meeting and takes away
time from discussing the child's needs. Another commenter expressed
concern that the integrity of the IEP Team meeting process depends on a
discussion to determine the services that are necessary to meet the
child's unique needs, and that the richness of this discussion may be
diminished if IEP Team members are allowed to be excused too frequently
and the IEP Team must rely on written input.
Several commenters recommended that the regulations acknowledge
that, in most circumstances, interactive discussion in IEP Team
meetings is preferable to written input. Many commenters requested that
the multidisciplinary scope of the IEP Team meeting be maintained. One
commenter stated that written input from an excused IEP Team member is
not sufficient and will be burdensome for both the writer and the
readers.
Discussion: Section 614(d)(1)(C) of the Act allows a parent of a
child with a disability and the LEA to agree that the attendance of an
IEP Team member at an IEP Team meeting, in whole or in part, is not
necessary under certain conditions. Allowing IEP Team members to be
excused from attending an IEP Team meeting is intended to provide
additional flexibility to parents in scheduling IEP Team meetings and
to avoid delays in holding an IEP Team meeting when an IEP Team member
cannot attend due to a scheduling conflict.
Changes: None.
Comment: Many commenters stated that the excusal provisions in
Sec. 300.321 should be optional for States and that States should be
allowed to require that all IEP Team members attend each IEP Team
meeting. Several commenters recommended allowing States to determine
the circumstances or conditions under which attendance at the IEP Team
meeting is not required. A few commenters recommended clarifying
whether a State must have policies and procedures to excuse IEP Team
members.
Discussion: Under section 614(d)(1)(C) of the Act, a State must
allow a parent and an LEA to agree to excuse a member of the IEP Team.
Section 300.321(e) reflects this requirement and we do not have the
authority to make this optional for States. We also do not have the
authority to allow a State to restrict, or otherwise determine, when an
IEP Team member can be excused from attending a meeting, or to prohibit
the excusal of an IEP Team member when the LEA and parent agree to the
excusal. Whether a State must have policies and procedures to excuse
IEP Team members from attending an IEP Team meeting will depend on
whether such policies and procedures are required by a State to
implement this statutory requirement. However, every State must allow a
parent and an LEA to agree to excuse an IEP Team member from attending
an IEP Team meeting.
Changes: None.
Comment: Several commenters recommended that the regulations
clarify whether the excusal agreement must meet the standard for
informed consent. Some commenters stated that Congress intended excusal
agreements to mean informed written consent. Other commenters stated
that parents, not the public agency, can provide consent and therefore,
only parents should be allowed to provide consent for excusing IEP Team
members from IEP Team meetings. A few commenters recommended
simplifying Sec. 300.321(e) by eliminating the different procedures
for different types of excusals.
Discussion: Whether a parent must provide consent to excuse a
member of the IEP Team from attending an IEP Team meeting depends on
whether the member's area of the curriculum or related services is
being modified or discussed at the IEP Team meeting. We cannot
eliminate the different procedures for different types of excusals
because section 614(d)(1)(C) of the Act clearly differentiates between
circumstances in which parental consent is required and when an
agreement is required to excuse an IEP member from attending an IEP
Team meeting.
If the member's area is not being modified or discussed, Sec.
300.321(e)(1), consistent with section 614(d)(1)(C) of the Act,
provides that the member may be excused from the meeting if the parent
and LEA agree in writing that the member's attendance is not necessary.
An agreement is not the same as consent, but instead refers to an
understanding between the parent and the LEA. Section 614(d)(1)(C) of
the Act specifically requires that the agreement between a parent and
an LEA to excuse a member's attendance at an IEP Team meeting must be
in writing. If, however, the member's area is being modified or
discussed, Sec. 300.321(e)(2), consistent with section
614(d)(1)(C)(ii) of the Act, requires the LEA and the parent to provide
written informed consent.
Changes: None.
Comment: One commenter asked whether parents must be provided any
information when asked to excuse IEP Team members. A few commenters
recommended that the request for an excusal include the reason for the
request to excuse a member of the IEP Team, that it be written in the
chosen language of the parent, and accompanied by written evaluations
and recommendations of the excused IEP Team member.
A few commenters recommended that no IEP Team member should be
excused from attending an IEP Team meeting until the parent is informed
about the purpose of the meeting for which the public agency proposes
to excuse the IEP Team member; the IEP Team member's name and position;
the reason(s) the public agency wants to excuse the IEP Team member;
the parent's right to have the IEP Team member present; and the
parent's right to discuss with the IEP Team member any issues in
advance of the meeting so the parent is adequately informed. The
commenters stated that this notice should be included in any statement
of parent's rights that is distributed.
Numerous commenters recommended that the regulations include
specific language to clarify that, before agreeing to excuse an IEP
Team member, serious consideration must be given to determining if
written input will be sufficient to thoroughly examine what services
are needed and whether changes to the current IEP are necessary. A few
commenters recommended that parents be informed of the roles and
responsibilities of the excused member prior to giving consent for the
excusal. Some commenters stated that parents must understand that they
have the right to disagree and not excuse a member of the IEP Team who
the parents believe may be essential to developing or revising an IEP.
One commenter recommended that the written agreement be required to
include information that the parent was informed of the parent's right
to have all IEP Team members present.
[[Page 46674]]
One commenter recommended permitting States to establish additional
procedural safeguards that guarantee that parents who consent to excuse
an IEP member from a meeting do so freely and are aware of the
implications of their decisions. Some commenters expressed concern that
a parent could be pressured to agree to excuse an IEP Team member for
what, in reality, are economic or staffing reasons. One commenter
stated that parents should have the right to consent to excusal only
after conferring with the individual to be excused. Some commenters
recommended that parents be informed that they have a legal right to
require an IEP Team member to participate in the meeting.
A few commenters expressed concern that the permission to excuse
IEP Team members from attending IEP Team meetings will be abused,
particularly with language-minority parents who are often misinformed
or misled by school districts. Some commenters stated that parents do
not understand the roles of the various members and could easily be
pressured into excusing vital members of the IEP Team.
A few commenters recommended that the regulations include
requirements to guard against excessive excusals. Some commenters
stated that an LEA that routinely prevents general or special education
teachers, or related services providers, from attending IEP Team
meetings using the excusal provisions should be subject to monitoring
and review.
Discussion: When an IEP Team member's area is not being modified or
discussed, Sec. 300.321(e)(1), consistent with section 614(d)(1)(C) of
the Act, provides that the member may be excused from the meeting if
the parent and LEA agree in writing that the member's attendance is not
necessary. We believe it is important to give public agencies and
parents wide latitude about the content of the agreement and,
therefore, decline to regulate on the specific information that an LEA
must provide in a written agreement to excuse an IEP Team member from
attending the IEP Team meeting when the member's area of the curriculum
or related services is not being modified or discussed.
When an IEP Team member's area is being modified or discussed,
Sec. 300.321(e)(2), consistent with section 614(d)(1)(C)(ii) of the
Act, requires the LEA and the parent to provide written informed
consent. Consistent with Sec. 300.9, consent means that the parent has
been fully informed in his or her native language, or other mode of
communication, and understands that the granting of consent is
voluntary and may be revoked at any time. The LEA must, therefore,
provide the parent with appropriate and sufficient information to
ensure that the parent fully understands that the parent is consenting
to excuse an IEP Team member from attending an IEP Team meeting in
which the member's area of the curriculum or related services is being
changed or discussed and that if the parent does not consent the IEP
Team meeting must be held with that IEP Team member in attendance.
We believe that these requirements are sufficient to ensure that
the parent is fully informed before providing consent to excuse an IEP
Team member from attending an IEP Team meeting in which the member's
area of the curriculum will be modified or discussed, and do not
believe that it is necessary to include in the regulations the more
specific information that commenters recommended be provided to
parents.
We also do not believe it is necessary to add a regulation
permitting States to establish additional procedural safeguards for
parents who consent to excuse an IEP Team member, as recommended by one
commenter, because we believe the safeguard of requiring consent will
be sufficient to prevent parents from feeling pressured to excuse an
IEP Team member. Furthermore, parents who want to confer with an
excused team member may ask to do so before agreeing or consenting to
excusing the member from attending the IEP Team meeting, but it would
be inappropriate to add a regulation that limited parent rights by
requiring a conference before the parent could agree or consent to the
excusal of an IEP Team member.
With regard to the recommendation that the notice state that the
parent has a legal right to require an IEP Team member to participate
in an IEP Team meeting, it is important to emphasize that it is the
public agency that determines the specific personnel to fill the roles
for the public agency's required participants at the IEP Team meeting.
A parent does not have a legal right to require other members of the
IEP Team to attend an IEP Team meeting. Therefore, if a parent invites
other public agency personnel who are not designated by the LEA to be
on the IEP Team, they are not required to attend.
An LEA may not routinely or unilaterally excuse IEP Team members
from attending IEP Team meetings as parent agreement or consent is
required in each instance. We encourage LEAs to carefully consider,
based on the individual needs of the child and the issues that need to
be addressed at the IEP Team meeting whether it makes sense to offer to
hold the IEP Team meeting without a particular IEP Team member in
attendance or whether it would be better to reschedule the meeting so
that person could attend and participate in the discussion. However, we
do not believe that additional regulations on this subject are
warranted.
An LEA that routinely excuses IEP Team members from attending IEP
Team meetings would not be in compliance with the requirements of the
Act, and, therefore, would be subject to the State's monitoring and
enforcement provisions.
Changes: None.
Comment: A few commenters requested clarification on whether
excusals from IEP Team meetings apply to only regular education
teachers, special education teachers, and related services providers,
or to all individuals whose curriculum areas may be discussed at an IEP
Team meeting. One commenter recommended clarifying that all IEP Team
members, as defined in Sec. 300.321, must be represented at the IEP
Team meeting unless excused by the parents and the LEA.
One commenter stated that Sec. 300.321(e) can be read to require
that each individual invited to the IEP Team meeting by the parent or
the public agency (who has knowledge or special expertise) must attend
the meeting unless the parent and the agency agree in writing that they
need not attend. The commenter recommended that the regulations clarify
that the attendance of the other individuals invited to attend the IEP
Team meeting by the parent and public agency is discretionary and that
no waiver is needed to hold the IEP Team meeting without them. The
commenter recommended revising Sec. 300.321(e)(1) to refer to
``mandatory'' members of the IEP Team. Another commenter expressed
concern that it is not possible to pre-determine the areas of the
curriculum that may be addressed at an IEP Team meeting, and
recommended that excusals be permitted only for the IEP Team members
identified by the public agency in Sec. 300.321(a).
One commenter recommended that the regulations allow teachers with
classroom responsibilities to attend an IEP Team meeting for 15 to 20
minutes and leave the meeting when necessary. Some commenters requested
clarification regarding situations in which there is more than one
regular education teacher at an IEP Team meeting and whether one or
both
[[Page 46675]]
teachers must have a written excusal to leave before the end of an IEP
Team meeting.
One commenter stated that it is unclear whether consent must be
obtained if a speech pathologist or occupational therapist cannot
attend a meeting because speech pathologists and occupational
therapists are not required members of an IEP Team.
Discussion: We believe that the excusals from IEP Team meetings
apply to the members of the IEP Team in paragraphs (a)(2) through (5)
in Sec. 300.321, that is, to the regular education teacher of the
child (if the child is, or may be participating in the regular
education environment); not less than one special education teacher of
the child (or where appropriate, not less than one special education
provider of the child); a representative of the public agency who meets
the requirements in Sec. 300.321(a)(4); and an individual who can
interpret the instructional implications of evaluation results. We do
not believe it is necessary to require consent or a written agreement
between the parent and the public agency to excuse individuals who are
invited to attend IEP Team meetings at the discretion of the parent or
the public agency because such individuals are not required members of
an IEP Team. We will add new language to Sec. 300.321(e) to clarify
the IEP Team members for whom the requirements regarding excusals
apply.
With regard to situations in which there is more than one regular
education teacher, the IEP Team need not include more than one regular
education teacher. The regular education teacher who serves as a member
of a child's IEP Team should be a teacher who is, or may be,
responsible for implementing a portion of the IEP so that the teacher
can participate in discussions about how best to instruct the child. If
the child has more than one regular education teacher responsible for
carrying out a portion of the IEP, the LEA may designate which teacher
or teachers will serve as the IEP member(s), taking into account the
best interest of the child. An LEA could also agree that each teacher
attend only the part of the meeting that involves modification to, or
discussion of, the teacher's area of the curriculum.
Section 300.321(a)(3) requires the IEP Team to include not less
than one special education teacher or where appropriate, not less than
one special education provider of the child. As explained earlier, a
special education provider is a person who is, or will be, responsible
for implementing the IEP. Therefore, if a speech pathologist,
occupational therapist, or other special education provider, other than
the child's special education teacher is on the IEP Team, written
consent from the parent would be required for the speech pathologist,
occupational therapist, or other special education provider to be
excused from attending an IEP Team meeting, in whole or in part, when
the IEP Team meeting involves a modification to, or discussion of, the
IEP Team member's related service or area of the curriculum.
Changes: We have added language in Sec. 300.321(e)(1) to refer to
paragraphs (a)(2) through (a)(5), and a reference to paragraph (e)(1)
in Sec. 300.321(e)(2) to clarify the IEP Team members for whom a
parent and public agency must consent or agree in writing to excuse
from an IEP Team meeting.
Comment: A few commenters stated that excusal of the regular
education teacher is already built into the requirements and questioned
the circumstances under which a State might exceed these requirements.
Discussion: Section 300.321(a)(2) does not require a regular
education teacher to be part of the IEP Team for a child who is not
participating in the regular education environment or is not
anticipated to participate in the regular education environment. The
excusals from IEP Team meetings in Sec. 300.321(e) apply to a regular
education teacher who is part of the IEP Team by virtue of the fact
that the child with a disability is participating, or may be
participating, in the regular education environment.
Changes: None.
Comment: Some commmenters recommended setting a limit as to how
often teachers can be excused from IEP Team meetings. A few commenters
recommended prohibiting the excusal of IEP Team members for initial IEP
Team meetings. One commenter recommended allowing an IEP Team meeting
to occur only if there is one person who cannot attend the meeting.
Many commenters opposed the excusal of teachers, therapists, speech
providers, and other experts who work with a child on an ongoing basis.
A few commenters stated that regular education teachers should not be
excused from IEP Team meetings because they have the content expertise
that is critical to the IEP process. One commenter stated that the
excusal of an LEA representative should not be allowed.
A few commenters requested guidance to make it more difficult for
IEP Team members to be excused from IEP Team meetings. Some commenters
stated that excusing IEP Team members should only be done in limited
circumstances and only when absolutely necessary.
Some commenters recommended that the regulations provide an
opportunity for the parents to challenge a public agency's attempt to
exclude staff members who believe their attendance is necessary at an
IEP Team meeting. A few commenters suggested that the regulations
prohibit excusal of personnel based on the cost of providing coverage
in the classroom for a teacher to attend the IEP Team meeting,
disagreements over appropriate services among staff, or scheduling
problems. One commenter recommended that the regulations clearly state
that teachers cannot be barred from attending an IEP Team meeting.
Discussion: We decline to make the changes requested by the
commenters because it would be inconsistent with section 614(d)(1)(C)
of the Act to set a limit on the number of times an IEP Team member
could be excused; prohibit excusals for initial IEP Team meetings;
restrict the number of excusals per meeting; prohibit certain IEP Team
members from being excused from attending an IEP Team meeting; or
otherwise restrict or limit parents and LEAs from agreeing to excuse
IEP Team members from attending an IEP Team meeting. Likewise, it would
be inconsistent with section 614(d)(1)(C) of the Act for an LEA to
unilaterally excuse an IEP Team member from attending an IEP Team
meeting.
The public agency determines the specific personnel to fill the
roles for the public agency's required participants at the IEP Team
meeting. Whether other teachers or service providers who are not the
public agency's required participants at the IEP Team meeting can
attend an IEP Team meeting is best addressed by State and local
officials.
Changes: None.
Comment: A few commenters asked whether the regular teacher, the
special education teacher, principal, or the LEA makes the decision
with the parent to excuse an IEP member. Some commenters recommended
that the regulations require the excused IEP Team member to agree to be
excused from an IEP Team meeting. Other commenters stated that a
teacher should be included as one of the parties that decide whether a
teacher should be excused from attending the IEP Team meeting.
Numerous commenters recommended that, before an IEP Team member is
excused from attending an IEP Team meeting, sufficient notice must be
given so that other IEP Team members can consider the request. Some
commenters requested that the regulations clarify
[[Page 46676]]
whether the entire IEP Team must meet and then agree on whether a
member's attendance at the IEP Team meeting is needed.
Discussion: It would not be appropriate to make the changes